Federal Register Vol. 83, No.223,

Comments Invited

We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2017-0174, dated September 12, 2017 (EASA AD 2017-0174), to correct an unsafe condition for Airbus Helicopters Model MBB-BK 117 C-2 helicopters. EASA advises that recalculation by Airbus Helicopters has resulted in new or reduced life limits for certain parts. EASA AD 2017-0174 states the life limits are mandatory for continued airworthiness and failing to replace life-limited parts as specified could result in an unsafe condition. To address this condition, EASA AD 2017-0174 requires replacing the affected parts before exceeding their new or reduced life limit.

These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

We reviewed Airbus Helicopters Alert Service Bulletin ASB MBB-BK117 C-2-04A-008, Revision 0, dated April 27, 2017, for Model MBB-BK 117 C-2 and C-2e helicopters. This service information specifies entering into the helicopter records the reduced and new airworthiness life limits for certain part-numbered main rotor head, swash plate, rotor flight controls, cyclic controls, and upper controls parts.

This proposed AD would require establishing and reducing the life limit of the following parts: Main rotor head—nut, upper and lower quadruple nut, bolts, and inner sleeve; swash plate control ring assembly; rotor flight control collective bellcrank-K; cyclic control rod tube; and upper control forked lever.

We estimate that this proposed AD would affect 128 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Replacing a nut would take about 5 work-hours and parts would cost about $3,352 for an estimated replacement cost of $3,777.

Replacing a quadruple nut upper would take about 5 work-hours and parts would cost about $3,283 for an estimated replacement cost of $3,708.

Replacing a quadruple nut lower would take about 5 work-hours and parts would cost about $3,405 for an estimated replacement cost of $3,830.

Replacing a bolt would take about 2 work-hours and parts would cost about $370 for an estimated replacement cost of $540.

Replacing an inner sleeve would take about 2 work-hours and parts would cost about $20,073 for an estimated replacement cost of $20,243.

Replacing a control ring assembly would take about 5 work-hours and parts would cost about $11,141 for an estimated replacement cost of $11,566.

Replacing a bellcrank-K (collective) would take about 4 work-hours and parts would cost about $3,400 for an estimated replacement cost of $3,740.

Replacing a control rod tube would take about 4 work-hours and parts would cost about $1,084 for an estimated replacement cost of $1,424.

Replacing a forked lever would take about 3 work-hours and parts would cost about $6,049 for an estimated replacement cost of $6,304.

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

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

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

For the reasons discussed, I certify this proposed regulation:

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

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0920; Product Identifier 2016-NE-09-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We issued AD 2016-22-05, Amendment 39-18694 (81 FR 75686, November 1, 2016), (“AD 2016-22-05”), for certain PW PW4164, PW4164-1D, PW4168, PW4168-1D, PW4168A, PW4168A-1D, and PW4170 turbofan engines. AD 2016-22-05 requires initial and repetitive inspections of the affected fuel nozzles and their replacement with parts eligible for installation. AD 2016-22-05 resulted from several instances of fuel leaks on PW engines installed with the Talon IIB combustion chamber configuration. We issued AD 2016-22-05 to prevent failure of the fuel nozzles, which could lead to engine fire and damage to the airplane.

Since we issued AD 2016-22-05, multiple PW4000 turbofan engines experienced fuel leaks resulting in engine fires. A subsequent review of the potential causes identified cracks in the fuel manifold at the braze joint. As a result, PW published PW Alert Service Bulletin (ASB) PW4G-100-A73-47, dated March 10, 2017, and PW Service Bulletin (SB) PW4G-100-73-48, Revision No. 1, dated April 24, 2018, to introduce a forged fuel nozzle that removes the brazed inlet fitting and adds new brackets and clamps to the fuel supply manifolds to dampen combustion chamber vibrations.

We reviewed PW ASB PW4G-100-A73-45, dated February 16, 2016; PW ASB PW4G-100-A73-47, dated March 10, 2017; and PW SB PW4G-100-73-48, Revision No. 1, dated April 24, 2018. PW ASB PW4G-100-A73-45 describes procedures for inspecting and replacing the fuel nozzles. PW ASB PW4G-100-A73-47 describes procedures for replacing the fuel nozzle and support assembly. PW SB PW4G-100-73-48 describes procedures for replacing the fuel nozzle manifold assemblies and installing new brackets and clamps on the manifolds. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would retain all requirements of AD 2016-22-05. This proposed AD would require initial and repetitive inspections and replacement of the affected fuel nozzles. This proposed AD would also require replacement of the affected fuel nozzle supply manifold assemblies and the installation of new brackets and clamps on the fuel supply manifold assemblies with parts eligible for installation.

PW ASB PW4G-100-A73-47, dated March 10, 2017, requires the installation of the new fuel nozzles by April 1, 2019, which is approximately 24 months from the PW ASB issue date. This AD requires initial inspection and replacement of failed fuel nozzles before further flight and installation of new fuel nozzles within 24 months after the effective date of this AD.

We estimate that this proposed AD affects 72 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

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

For the reasons discussed above, I certify that the proposed regulation:

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

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0961; Product Identifier 2018-NM-121-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received reports indicating that the pitot heat switch is not always set to ON. The failure to activate the manually activated pitot anti-icing system likely resulted in misleading air data that contributed to an accident and three incidents involving Boeing Model 737 airplanes. This condition, if not addressed, could result in the air data sensors not being heated, which could allow ice to form on the sensors and cause erroneous air data. This erroneous air data can lead to loss of crew situational awareness and an inability to maintain continued safe flight and landing of the airplane.

We reviewed Boeing Alert Service Bulletin 737-30A1064, Revision 1, dated October 18, 2017. The service information describes procedures for replacement and repetitive testing of the P5-9 window and pitot heat module, changing the anti-icing system to automatically supply power to heat the air data sensors. If flight crews fail to activate it manually, the anti-icing system will come on automatically after engine start.

We also reviewed the following concurrent service information.

• Boeing Service Bulletin 737-30-1067, Revision 1, dated May 4, 2017. This service information describes procedures for installing a new J18 junction box to change the anti-icing system.

• Boeing Service Bulletin 737-30-1068, Revision 1, dated May 4, 2017. This service information describes procedures for installing wiring provisions to the anti-icing system.

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

Operators are required by 14 CFR part 91 to have an MEL to operate with inoperable equipment. Paragraph (l) of this proposed AD allows for the operation of the airplane even if the modified air data probe heat (ADPH) system is inoperable, so long as the operator's MEL has a provision to allow for this inoperability.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-30A1064, Revision 1, dated October 18, 2017, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

This proposed AD would also require accomplishing the actions specified in Boeing Service Bulletin 737-30-1067, Revision 1, dated May 4, 2017; and Boeing Service Bulletin 737-30-1068, Revision 1, dated May 4, 2017, described previously.

For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0961.

We estimate that this proposed AD affects 296 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

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

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

This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.

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

For the reasons discussed above, I certify this proposed regulation:

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

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

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

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

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0924; Product Identifier 2018-NE-34-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM.

We received several reports of HCF cracks found in the fuel nozzle supply manifold tube at the braze joint interface on PW PW4158 turbofan engines identified with suffix-3 on the Engine Data Plate, and equipped with the Talon IIB combustor chamber. The root cause of the cracks in the braze joint was attributed to thermal mechanical fatigue due to high thermal gradients on engines equipped with the Talon IIB combustor chamber. This condition, if not addressed, could result in engine fire, damage to the engine, and damage to the airplane.

We reviewed PW Service Bulletin (SB) PW4ENG 73-224, dated November 8, 2017. The SB describes procedures for replacing the fuel nozzle supply manifold assemblies with parts eligible for installation, and installing new brackets and clamps on the fuel nozzle supply manifolds. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We reviewed PW SB PW4ENG 73-223, dated February 5, 2018. This SB describes procedures for replacing the fuel nozzles and fuel nozzle support assemblies with parts eligible for installation.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require replacing the affected fuel nozzles and fuel nozzle manifold supply assemblies with parts eligible for installation. This proposed AD would also require installation of new brackets and clamps on the fuel supply manifold assemblies.

We estimate that this proposed AD affects 114 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

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

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

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

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

For the reasons discussed above, I certify this proposed regulation:

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

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

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

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

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

Background

As part of the National Defense Authorization Act (NDAA) for Fiscal Year 2019, Public Law No: 115-232, Congress enacted the Export Control Reform Act of 2018 (the Act or ECRA). Section 1758 of the Act authorizes Commerce to establish appropriate controls, including interim controls, on the export, reexport, or transfer (in country) of emerging and foundational technologies. Under the Act, emerging and foundational technologies are those essential to the national security of the United States and are not described in Section 721(a)(6)(A)(i)-(v) of the Defense Production Act of 1950, as amended. Emerging and foundational technologies, in keeping with ECRA, will be determined by an interagency process that will consider both public and classified information as well as information from the Emerging Technology Technical Advisory Committee and the Committee on Foreign Investment in the United States.

In identifying emerging and foundational technologies, the process must consider:

• The development of emerging and foundational technologies in foreign countries;

• The effect export controls may have on the development of such technologies in the United States; and

• The effectiveness of export controls on limiting the proliferation of emerging and foundational technologies in foreign countries.

To help inform this process, this advance notice of proposed rulemaking (ANPRM) proposes several general areas for public comment. Given the challenges involved in identifying emerging and foundational technologies, this ANPRM will help Commerce and other agencies propose specific emerging technologies for control.

Once an emerging or foundational technology has been identified, the Act authorizes Commerce to establish controls, including interim controls, on the export, reexport, or transfer (in-country) of that technology. In determining the appropriate level of export controls, the Department must consider the potential end-uses and end-users of the technology, and countries to which exports from the United States are restricted (e.g., embargoed countries). While Commerce has discretion to set the level of export controls, at a minimum it must require a license for the export of emerging and foundational technologies to countries subject to a U.S. embargo, including those subject to an arms embargo. Responses to this ANPRM will help Commerce and other agencies identify and assess emerging technologies for the purposes of updating the export control lists without impairing national security or hampering the ability of the U.S. commercial sector to keep pace with international advances in emerging fields.

To assist BIS in identifying emerging technologies that are essential to the national security of the United States, this ANPRM seeks public comment on criteria for defining and identifying emerging technologies. This ANPRM describes certain categories of technology that are currently subject to the EAR but controlled only to embargoed countries, countries designated as supporters of international terrorism, and restricted end uses or end users. These categories are a representative list of the technology categories from which Commerce, through an interagency process, seeks to determine whether there are specific emerging technologies that are important to the national security of the United States for which effective controls can be implemented that avoid negatively impacting U.S. leadership in the science, technology, engineering, and manufacturing sectors.

Commerce does not seek to expand jurisdiction over technologies that are not currently subject to the EAR, such as “fundamental research” described in § 734.8 of the EAR. For purposes of this ANPRM, Commerce does not seek to alter existing controls on technology already specifically described in the CCL. Such controls would generally continue to be addressed through multilateral regimes or interagency reviews.

Commerce will issue a separate ANPRM regarding identification of foundational technologies that may be important to U.S. national security. Commerce seeks public comment, however, on treating emerging and foundational technologies as separate types of technology.

The representative general categories of technology for which Commerce currently seeks to determine whether there are specific emerging technologies that are essential to the national security of the United States include:

(1) Biotechnology, such as:

(i) Nanobiology;

(ii) Synthetic biology;

(iv) Genomic and genetic engineering; or

(v) Neurotech.

(2) Artificial intelligence (AI) and machine learning technology, such as:

(i) Neural networks and deep learning (e.g., brain modelling, time series prediction, classification);

(ii) Evolution and genetic computation (e.g., genetic algorithms, genetic programming);

(iii) Reinforcement learning;

(iv) Computer vision (e.g., object recognition, image understanding);

(v) Expert systems (e.g., decision support systems, teaching systems);

(vi) Speech and audio processing (e.g., speech recognition and production);

(vii) Natural language processing (e.g., machine translation);

(viii) Planning (e.g., scheduling, game playing);

(ix) Audio and video manipulation technologies (e.g., voice cloning, deepfakes);

(x) AI cloud technologies; or

(xi) AI chipsets.

(3) Position, Navigation, and Timing (PNT) technology.

(4) Microprocessor technology, such as:

(i) Systems-on-Chip (SoC); or

(ii) Stacked Memory on Chip.

(5) Advanced computing technology, such as:

(i) Memory-centric logic.

(6) Data analytics technology, such as:

(i) Visualization;

(ii) Automated analysis algorithms; or

(iii) Context-aware computing.

(7) Quantum information and sensing technology, such as

(i) Quantum computing;

(ii) Quantum encryption; or

(iii) Quantum sensing.

(8) Logistics technology, such as:

(i) Mobile electric power;

(ii) Modeling and simulation;

(iii) Total asset visibility; or

(iv) Distribution-based Logistics Systems (DBLS).

(9) Additive manufacturing (e.g., 3D printing);

(10) Robotics such as:

(i) Micro-drone and micro-robotic systems;

(ii) Swarming technology;

(iii) Self-assembling robots;

(iv) Molecular robotics;

(v) Robot compliers; or

(vi) Smart Dust.

(11) Brain-computer interfaces, such as

(i) Neural-controlled interfaces;

(ii) Mind-machine interfaces;

(iii) Direct neural interfaces; or

(iv) Brain-machine interfaces.

(12) Hypersonics, such as:

(i) Flight control algorithms;

(ii) Propulsion technologies;

(iii) Thermal protection systems; or

(iv) Specialized materials (for structures, sensors, etc.).

(13) Advanced Materials, such as:

(i) Adaptive camouflage;

(ii) Functional textiles (e.g., advanced fiber and fabric technology); or

(iii) Biomaterials.

(14) Advanced surveillance technologies, such as:

Faceprint and voiceprint technologies.

BIS welcomes comments on: (1) How to define emerging technology to assist identification of such technology in the future; (2) criteria to apply to determine whether there are specific technologies within these general categories that are important to U.S. national security; (3) sources to identify such technologies; (4) other general technology categories that warrant review to identify emerging technology that are important to U.S. national security; (5) the status of development of these technologies in the United States and other countries; (6) the impact specific emerging technology controls would have on U.S. technological leadership; (7) any other approaches to the issue of identifying emerging technologies important to U.S. national security, including the stage of development or maturity level of an emerging technology that would warrant consideration for export control.

Comments should be submitted to BIS as described in the ADDRESSES section of this ANPRM by December 19, 2018.

This rule was determined to be significant by the Office of Management Budget under Executive Order 12866.

Background and Explanation of Provisions

This document contains proposed amendments to 26 CFR part 300 regarding user fees.

Section 330(a)(1) of title 31 of the United States Code authorizes the Secretary of the Treasury to regulate the practice of representatives before the Treasury Department. Before admitting a representative to practice, the Secretary is authorized to “require that the representative demonstrate—(A) good character; (B) good reputation; (C) necessary qualifications to enable the representative to provide to persons valuable service; and (D) competency to advise and assist persons in presenting their cases.” 31 U.S.C. 330(a)(2). Pursuant to section 330 of title 31, the Secretary has published regulations governing practice before the IRS in 31 CFR part 10 and reprinted the regulations as Treasury Department Circular No. 230 (Circular 230).

Section 10.4(a) of Circular 230 authorizes the IRS to grant enrollment as enrolled agents to individuals who demonstrate special competence in tax matters by passing a written examination administered by, or under the oversight of, the IRS and who have not engaged in any conduct that would justify suspension or disbarment under Circular 230. Every year, the IRS develops and administers an Enrolled Agent Special Enrollment Examination (EA-SEE) that individuals must pass to become an enrolled agent.

Section 10.4(b) of Circular 230 currently authorizes the IRS to grant enrollment as enrolled retirement plan agents to individuals who demonstrate special competence in qualified retirement plan matters by passing a written examination administered by, or under the oversight of, the IRS and who have not engaged in any conduct that would justify suspension or disbarment under Circular 230. Until February 12, 2016, the IRS annually developed and administered an Enrolled Retirement Plan Agent Special Enrollment Examination (ERPA-SEE) that individuals were required to take and pass to become an enrolled retirement plan agent. After February 12, 2016, however, the IRS stopped offering the ERPA-SEE. Individuals who have already passed the ERPA-SEE may maintain their enrollment as enrolled retirement plan agents, but the IRS is not accepting applications to become new Enrolled Retirement Plan Agents. Accordingly, the proposed regulations propose to remove the user fee for the initial enrollment of an enrolled retirement plan agent currently in Treasury Regulation § 300.10.

Section 10.4(d) also authorizes the IRS to grant enrollment as an enrolled agent or an enrolled retirement plan agent to a qualifying former IRS employee by virtue of past IRS service and technical experience if the former employee has not engaged in any conduct that would justify suspension or disbarment under the provisions of Circular 230 and meets certain other requirements. Application for enrollment as an enrolled agent based on former employment with the IRS must be made within three years from the date of separation from that employment and does not require passing the EA-SEE. When the IRS discontinued offering the ERPA-SEE necessary for enrollment as an enrolled retirement plan agent for individuals without IRS work experience, effective February 12, 2016, the IRS stopped granting individuals enrollment as enrolled retirement plan agents by virtue of past service and technical experience in the IRS.

Once eligible for enrollment as an enrolled agent, whether by examination or former employment with the IRS, an individual must file an application for enrollment with the IRS and currently pay a $30 nonrefundable user fee. To maintain active enrollment and practice before the IRS, an individual who has been enrolled as an enrolled agent or enrolled retirement plan agent must file an application to renew enrollment every three years and currently pay a $30 nonrefundable user fee. 31 CFR 10.6(d).

The IRS Return Preparer Office (RPO) is responsible for certain matters related to authority to practice before the IRS, including acting on applications for enrollment and renewal of enrolled agents and for renewal of enrolled retirement plan agents. 31 CFR 10.1. As a condition for enrollment as an enrolled agent, the RPO may conduct a federal tax-compliance check to determine whether an applicant has filed all required tax returns and has no outstanding federal tax debts and a suitability check to determine whether an applicant has engaged in any conduct that would justify suspending or disbarring any practitioner under Circular 230. 31 CFR 10.5(d). As a condition for renewal, enrolled agents and enrolled retirement plan agents must certify completion of the continuing education requirements. 31 CFR 10.6(e).

As part of its responsibility for administering the enrollment program, RPO determines whether applicants have met the above requirements. 31 CFR 10.6(j)(1). An applicant who is denied enrollment as an enrolled agent for failure to pass a tax-compliance check may reapply if the applicant becomes current with respect to the applicant's tax liabilities. 31 CFR 10.5(d)(2). Applicants who fail to meet the continuing education and fee payment requirements receive from RPO a notice that states the basis for RPO's determination of noncompliance and provides an opportunity to cure the failure. 31 CFR 10.6(j)(1).

The Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C. 9701) authorizes each agency to promulgate regulations establishing the charge for services the agency provides (user fees). Under the IOAA, these user-fee regulations are subject to policies prescribed by the President and shall be as uniform as practicable. Those policies are currently set forth in the Office of Management and Budget (OMB) Circular A-25 (OMB Circular), 58 FR 38142 (July 15, 1993).

The IOAA states that the services provided by an agency should be self-sustaining to the extent possible (31 U.S.C. 9701(a)). The OMB Circular states that agencies providing services that confer special benefits on identifiable recipients beyond those accruing to the general public must identify those services, determine whether user fees should be assessed for those services, and, if so, establish user fees that recover the full cost of providing those services. As required by the IOAA and the OMB Circular, agencies are to review user fees biennially and update them as necessary to reflect changes in the cost of providing the underlying services. During these biennial reviews, an agency must calculate the full cost of providing each service, taking into account all direct and indirect costs to any part of the U.S. government. The full cost of providing a service includes, but is not limited to, salaries, retirement benefits, rents, utilities, travel, and management costs, as well as an appropriate allocation of overhead and other support costs associated with providing the service.

An agency should set the user fee at an amount that recovers the full cost of providing the service unless the agency requests, and the OMB grants, an exception to the full-cost requirement. The OMB may grant exceptions only where the cost of collecting the fees would represent an unduly large part of the fee for the activity, or where any other condition exists that, in the opinion of the agency head, justifies an exception. When the OMB grants an exception, the agency does not collect the full cost of providing the service that confers a special benefit on identifiable recipients rather than the public at large, and the agency therefore must fund the remaining cost of providing the service from other available funding sources. When the OMB grants an exception, the agency, and by extension all taxpayers, subsidize the cost of the service to the recipients who would otherwise be required to pay the full cost of providing the service, as the IOAA and the OMB Circular direct.

As discussed in section A of this preamble, an individual who has been granted enrollment as an enrolled agent or an enrolled retirement plan agent may practice before the IRS. The IRS confers benefits on individuals who are enrolled agents or enrolled retirement plan agents beyond those that accrue to the general public by allowing them to practice before the IRS. Because the ability to practice before the IRS is a special benefit, the IRS charges a user fee to recover the full cost associated with administering the program for enrollment and renewal of enrolled agents and renewal of enrolled retirement plan agents.

On September 30, 2010, the Treasury Department and the IRS published two final regulations in the Federal Register: final regulations (TD 9501, 75 FR 60309) that required tax return preparers who prepare all or substantially all of a tax return or claim for refund for compensation to obtain a preparer tax identification number (PTIN) and final regulations (TD 9503, 75 FR 60316) that required a user fee to apply for or renew a PTIN. Individuals applying for or renewing a PTIN were to be subject to federal tax-compliance and suitability checks and were required to pay a $50 user fee to obtain or renew a PTIN. All enrolled agents and certain enrolled retirement plan agents were required to obtain a PTIN as a condition of enrollment and renewal of enrollment. TD 9527, 76 FR 32286; Notice 2011-91, 2011-47 I.R.B. 792.

On April 19, 2011, the Treasury Department and the IRS published in the Federal Register (76 FR 21805) a final regulation (TD 9523) that reduced the amount of the user fees for the initial enrollment and renewal enrollment for enrolled agents and enrolled retirement plan agents from $125 to $30. Because individuals applying to enroll as an enrolled agent or enrolled retirement plan agent also had to obtain a PTIN, the user fee to enroll or renew enrollment was reduced to reflect that certain review procedures (including federal tax-compliance and suitability checks) would be performed as part of the process to obtain a PTIN. On June 1, 2017, the IRS ceased collecting any user fees related to the PTIN. See Steele v. United States, 260 F.Supp.3d 52 (D. D.C. 2017) (holding that the IRS was authorized to require tax return preparers to obtain PTINs, but was not authorized to charge fees for PTINs).

As required by the IOAA and the OMB Circular, the RPO completed its 2017 biennial review of the enrollment and renewal user fees associated with enrolled agents and enrolled retirement plan agents. As discussed in section D of this preamble, during its review the RPO took into account the increase in labor, benefits, and overhead costs incurred in connection with providing services to individuals who enroll or renew enrollment as enrolled agents and enrolled retirement plan agents since the user fee was last changed in 2011. In addition, RPO determined that costs associated with federal tax-compliance checks and suitability checks on enrolled individuals should be recovered as part of the user fee for administering the enrollment and renewal programs. The 2017 biennial review also took into account new costs associated with administering the program for enrolled agents and enrolled retirement plan agents, including the costs of operating a dedicated toll-free helpline in the RPO for enrollment and renewal matters. The RPO determined that the full cost of administering the program for enrolled agents and enrolled retirement plan agents has increased from $30 to $67 per application for enrollment or renewal. The proposed fee complies with the directive in the OMB Circular to recover the full cost of providing a service that confers special benefits on identifiable recipients beyond those accruing to the general public.

The IRS follows generally accepted accounting principles (GAAP) in calculating the full cost of processing an application for enrollment or renewal. The Federal Accounting Standards Advisory Board (FASAB) is the body that establishes GAAP that apply for federal reporting entities, such as the IRS. FASAB publishes the FASAB Handbook of Accounting Standards and Other Pronouncements, as Amended (Current Handbook), which is available at http://files.fasab.gov/pdffiles/2017_fasab_handbook.pdf. The Current Handbook includes the Statement of Federal Financial Accounting Standards (SFFAS) No. 4: Managerial Cost Accounting Concepts and Standards for the Federal Government. SFFAS No. 4 establishes internal costing standards under GAAP to accurately measure and manage the full cost of federal programs, and the methodology below is in accordance with SFFASNo. 4.

The IRS determines the cost of its services and the activities involved in producing them through a cost-accounting system that tracks costs to organizational units. The lowest organizational unit in the IRS's cost-accounting system is called a cost center. Cost centers are usually separate offices that are distinguished by subject-matter area of responsibility or geographic region. All costs of operating a cost center are recorded in the IRS's cost-accounting system and allocated to that cost center. The costs allocated to a cost center are the direct costs for the cost center's activities as well as all indirect costs, including overhead, associated with that cost center. Each cost is recorded in only one cost center.

To establish the per-unit cost, the total cost of providing the service is divided by the volume of services provided.

Not all cost centers are fully devoted to one service for which the IRS charges user fees. Some cost centers work on a number of different services across the IRS. In these cases, the IRS uses various cost-measurement techniques to estimate the cost incurred in those cost centers attributable to the program. These techniques include using various timekeeping systems to measure the time required to accomplish activities, or using information provided by subject-matter experts on the time devoted to a program. Once the IRS has estimated the average time required to accomplish an activity, it multiplies that time estimate by the relevant organizational unit's average labor and benefits cost per unit of time to determine the labor and benefits cost incurred to provide the service. To determine the full cost, IRS then adds overhead as discussed below.

Overhead is an indirect cost of operating an organization that cannot be immediately associated with an activity that the organization performs. Overhead includes costs of resources that are jointly or commonly consumed by one or more organizational unit's activities but are not specifically identifiable to a single activity.

These costs can include:

• General management and administrative services of sustaining and supporting organizations.

• Facilities management and ground maintenance services (security, rent, utilities, and building maintenance).

• Procurement and contracting services.

• Financial management and accounting services.

• Information technology services.

• Services to acquire and operate property, plants and equipment.

• Publication, reproduction, and graphics and video services.

• Research, analytical, and statistical services.

• Human resources/personnel services.

• Library and legal services.

To calculate the overhead allocable to a service, the IRS multiplies a Corporate Overhead rate by the labor and benefits costs determined as discussed previously. The IRS calculates the Corporate Overhead rate annually based on cost elements underlying the Statement of Net Cost included in the IRS Annual Financial Statements, which are audited by the Government Accountability Office. The Corporate Overhead rate is the ratio of the sum of the IRS's indirect labor and benefits costs from the supporting and sustaining organizational units—those that do not interact directly with taxpayers—and all non-labor costs to the IRS's labor and benefits costs of its organizational units that interact directly with taxpayers.

The Corporate Overhead rate of 68.00 percent for costs reviewed during FY 2017 was calculated based on FY 2016 costs (which are assumed to be fixed and reoccurring) as follows:

The IRS used projections for fiscal years 2018 through 2020 to determine the direct costs associated with enrolled agent enrollment and renewal and enrolled retirement plan agent renewal. Direct costs are incurred by the RPO and include labor costs for enrollment and renewal submission processing; tax compliance and background checks; continuing education and testing-related activities; and communications, which include the new toll-free helpline.

The labor and benefits for the work performed related to applications for enrolled agent enrollment and renewal and enrolled retirement plan agent renewal is projected to be $2,708,603 in total over fiscal years 2018 through 2020. The labor and benefits costs include the cost to perform background checks and tax compliance checks, which are services that were not included in the previous $30 user fee. The number of enrollment and renewal applications is based on the FY2016 numbers adjusted by the anticipated increase in enrollment. Adding Corporate Overhead expenses to the total labor and benefits results in total costs of $4,550,453 as shown below:

Dividing this total cost by the projected population of initial enrollment and renewal applications for fiscal years 2018 through 2020 results in a cost per application of $67 as shown below:

Taking into account the full amount of these costs, the user fee for enrolled agent enrollment or renewal and enrolled retirement plan agent renewal is proposed to be $67 per application. The IRS does not intend to seek an exception from OMB to the full cost requirement.

OIRA has determined that this regulation is significant and subject to review under section 6(b) of Executive Order 12866.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. The user fee primarily affects individuals who are enrolled agents, apply to become enrolled agents, or are enrolled retirement plan agents. Only individuals, not businesses, can be enrolled agents or enrolled retirement plan agents. Thus, any economic impact of the user fee on small entities generally will occur only when an enrolled agent or enrolled retirement plan agent owns a small business or when a small business employs enrolled agents or enrolled retirement plan agents and reimburses them for their renewal fees. The Treasury Department and IRS estimate that approximately 22,781 individuals will apply annually for enrollment as an enrolled agent, renewal as an enrolled agent, or renewal as an enrolled retirement plan agent. Due to the relatively small number of small businesses that employ enrolled agents or enrolled retirement plan agents, a substantial number of small entities are not likely to be affected. Further, the economic impact on any small entities affected would be limited to paying the $37 difference in cost between the $67 user fee and the previous $30 user fee (for each enrolled agent or enrolled retirement plan agent that a small entity employs and pays for), which is unlikely to present a significant economic impact. The total economic impact of this regulation is thus approximately $842,897 annually, which is the product of the approximately 22,781 individuals and the $37 increase in the fee. Accordingly, the rule is not expected to have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.

It is not anticipated that the increase in user fee that is paid every three years and averages to $12.33 per year will negatively affect enrollment, which has historically remained steady as user fee amounts have changed. Pursuant to section 7805(f), this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in the preamble under the ADDRESSES section. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. All comments submitted will be made available at www.regulations.gov or upon request.

A public hearing has been scheduled for January 24, 2019, beginning at 10:00 a.m. in the Main Auditorium of the Internal Revenue Service Building, 1111 Constitution Avenue NW, Washington, DC 20224. Due to building-security procedures, visitors must enter at the Constitution Avenue entrance. All visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of § 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments and an outline of the topics to be discussed and the time to be devoted to each topic by January 18, 2019. A period of 10 minutes will be allocated to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal author of these regulations is Mark Shurtliff, Office of the Associate Chief Counsel (Procedure and Administration). Other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 300 is proposed to be amended as follows:

Table of Contents I. Background for EPA's Proposed Action II. Requirements for SO2 Nonattainment Plans III. Attainment Demonstration and Longer Term Averaging IV. Pennsylvania's Attainment Plan Submittal for the Allegheny Area V. EPA's Analysis of Pennsylvania's Attainment Plan Submittal for the Allegheny Area A. Pollutants Addressed B. Emissions Inventory Requirements C. Air Quality Modeling D. RACM/RACT E. RFP Plan F. Contingency Measures G. New Source Review VI. EPA's Proposed Action VII. Incorporation by Reference VIII. Statutory and Executive Order Reviews I. Background for EPA's Proposed Action

On June 2, 2010, the EPA Administrator signed a final rule establishing a new SO2 primary NAAQS as a 1-hour standard of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile of daily maximum 1-hour average concentrations. See 75 FR 35520 (June 22, 2010), 40 CFR 50.17. This action also revoked the existing 1971 annual standard and 24-hour standards, subject to certain conditions.1 EPA established the NAAQS based on significant evidence and numerous health studies demonstrating that serious health effects are associated with short-term exposures to SO2 emissions ranging from 5 minutes to 24 hours with an array of adverse respiratory effects including narrowing of the airways which can cause difficulty breathing (bronchoconstriction) and increased asthma symptoms. For more information regarding the health impacts of SO2, please refer to the June 22, 2010, final rulemaking. See 75 FR 35520. Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1) of the CAA. On August 5, 2013, EPA promulgated initial air quality designations for 29 areas for the 2010 SO2 NAAQS (78 FR 47191), which became effective on October 4, 2013, based on violating air quality monitoring data for calendar years 2009-2011, where there was sufficient data to support a nonattainment designation.2

Effective on October 4, 2013, the Allegheny Area was designated as nonattainment for the 2010 SO2 NAAQS for an area that encompasses the primary SO2 emitting sources of the Harsco Metals facility and the USS Mon Valley Works (Clairton, Edgar Thomson and Irvin Plants). The Allegheny Area is comprised of a portion of Allegheny County which includes the City of Clairton, City of Duquesne, City of McKeesport, Borough of Braddock, Borough of Dravosburg, Borough of East McKeesport, Borough of East Pittsburgh, Borough of Elizabeth, Borough of Glassport, Borough of Jefferson Hills, Borough of Liberty, Borough of Lincoln, Borough of North Braddock, Borough of Pleasant Hills, Borough of Port Vue, Borough of Versailles, Borough of Wall, Borough of West Elizabeth, Borough of West Mifflin, Elizabeth Township, Forward Township, and North Versailles Township in Pennsylvania. The October 4, 2013 final designation triggered a requirement for Pennsylvania to submit a SIP revision with an attainment plan for how the Area would attain the 2010 SO2 NAAQS as expeditiously as practicable, but no later than October 4, 2018, in accordance with CAA sections 172 and 191-192.

For a number of areas, including the Allegheny Area, EPA published a notice on March 18, 2016, that Pennsylvania and other pertinent states had failed to submit the required SO2 attainment plan by this submittal deadline. See 81 FR 14736. This finding initiated a deadline under CAA section 179(a) for the potential imposition of new source review and highway funding sanctions. However, pursuant to Pennsylvania's submittal of October 3, 2017, and EPA's subsequent letter dated October 6, 2017 to Pennsylvania finding the submittal complete and noting the stopping of the sanctions' deadline, these sanctions under section 179(a) will not be imposed as a consequence of Pennsylvania's having missed the original deadline. Additionally, under CAA section 110(c), the finding triggers a requirement that EPA promulgate a federal implementation plan (FIP) within two years of the effective date of the finding unless, by that time, the state has made the necessary complete submittal and EPA has approved the submittal as meeting applicable requirements.

Attainment plans must meet the applicable requirements of the CAA, and specifically CAA sections 172, 191, and 192. The required components of an attainment plan submittal are listed in section 172(c) of Title 1, part D of the CAA. The EPA's regulations governing nonattainment 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, 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 at 57 FR 13498 (April 16, 1992) (General Preamble). Among other things, the General Preamble addressed SO2 SIPs and fundamental principles for SIP control strategies. Id. at 13545-49, 13567-68. On April 23, 2014, EPA issued recommended guidance (hereafter 2014 SO2 Nonattainment Guidance) for how state submissions could address the statutory requirements for SO2 attainment plans.3 In this guidance, EPA described the statutory requirements for an attainment plan, which includes: An accurate base year emissions inventory of current emissions for all sources of SO2 within the nonattainment area (172(c)(3)); an attainment demonstration that includes a modeling analysis showing that the enforceable emissions limitations and other control measures taken by the state will provide for expeditious attainment of the NAAQS (172(c)); RFP (172(c)(2)); implementation of RACM, including RACT (172(c)(1)); NNSR requirements (172(c)(5)); and adequate contingency measures for the affected area (172(c)(9)). A synopsis of these requirements is also provided in the notice of proposed rulemaking on the Illinois SO2 nonattainment plans, published on October 5, 2017 at 82 FR 46434.

In order for EPA to fully approve a SIP as meeting the requirements of CAA sections 110, 172 and 191-192 and EPA's regulations at 40 CFR part 51, the SIP for the affected area needs to demonstrate to EPA's satisfaction that each of the aforementioned requirements have been met. Under CAA sections 110(l) and 193, 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 (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 insures 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 EPA has long required that all SIPs and control strategies reflect four fundamental principles of quantification, enforceability, replicability, and accountability. General Preamble, at 13567-68. SO2 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 which demonstrates that these emission limits and control measures provide for timely attainment of the primary SO2 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). EPA's 2014 SO2 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 SO2 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 shown to provide for attainment that the plan otherwise would have set.

The 2014 SO2 Nonattainment Guidance provides an extensive discussion of EPA's rationale for positing 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 SO2 NAAQS. In evaluating this option, EPA considered the nature of the standard, conducted detailed analyses of the impact of use 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 to 39. See also id. at Appendices B, C, and D.

As specified in 40 CFR 50.17(b), the 1-hour primary SO2 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 SO2 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 exceedance does not create a violation of the standard. Instead, at issue is whether a source operating in compliance with a properly set longer term average could cause exceedances, and if so the resulting frequency and magnitude of such exceedances, and in particular whether EPA can have reasonable confidence that a properly set longer term average limit will provide that the average fourth highest daily maximum value will be at or below 75 ppb. A synopsis of how EPA judges whether such plans “provide for attainment,” based on modeling of projected allowable emissions and in light of the NAAQS' form for determining attainment at monitoring sites follows.

For SO2 plans based on 1-hour emission limits, the standard approach is to conduct modeling using fixed emission rates. The maximum emission rate that would be modeled to result in attainment (i.e., in an “average year” 4 shows three, not four days with maximum hourly levels exceeding 75 ppb) is labeled the “critical emission value.” The modeling process for identifying this critical emissions value inherently considers the numerous variables that affect ambient concentrations of SO2, 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 at this critical emission value.

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 critical emission value. EPA also acknowledges the concern that longer term emission limits can allow short periods with emissions above the “critical emissions value,” which, if coincident with meteorological conditions conducive to high SO2 concentrations, could in turn create the possibility of a NAAQS exceedance occurring on a day when an exceedance would not have occurred if emissions were continuously controlled at the level corresponding to the critical emission value. However, for several reasons, EPA believes that the approach recommended in its guidance document suitably addresses this concern. First, from a practical perspective, 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. 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 critical emissions value) and that takes the source's emissions profile into account. As a result, EPA expects either form of emission limit to yield comparable air quality.

Second, from a more theoretical perspective, EPA has compared the likely air quality with a source having maximum allowable emissions under an appropriately set longer term limit, as compared 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 critical emission level, and in the longer term average limit scenario, the source is presumed occasionally to emit more than the critical emission value but on average, and presumably at most times, to emit well below the critical emission value. In an “average year,” compliance with the 1-hour limit is expected to result in three exceedance days (i.e., three days with 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 exceedances would occur that would not occur in the 1-hour limit scenario (if emissions exceed the critical emission value 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 well below the critical emission value), 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.

As a hypothetical example to illustrate these points, suppose a source that always emits 1000 pounds of SO2 per hour, which results in air quality at the level of the NAAQS (i.e., results in a design value of 75 ppb). Suppose further that in an “average year,” these emissions cause the 5 highest maximum daily average 1-hour concentrations to be 100 ppb, 90 ppb, 80 ppb, 75 ppb, and 70 ppb. Then suppose that the source becomes subject to a 30-day average emission limit of 700 pounds per hour. It is theoretically possible for a source meeting this limit to have emissions that occasionally exceed 1000 pounds per hour, but with a typical emissions profile, emissions would much more commonly be between 600 and 800 pounds per hour. In this simplified example, assume a zero background concentration, which allows one to assume a linear relationship between emissions and air quality. (A nonzero background concentration would make the mathematics more difficult but would give similar results.) Air quality will depend on what emissions happen on what critical hours, but suppose that emissions at the relevant times on these 5 days are 800 pounds/hour (lb/hr), 1100 pounds per hour, 500 pounds per hour, 900 pounds per hour, and 1200 pounds per hour, respectively. (This is a conservative example because the average of these emissions, 900 pounds per hour, is well over the 30-day average emission limit.) These emissions would result in daily maximum 1-hour concentrations of 80 ppb, 99 ppb, 40 ppb, 67.5 ppb, and 84 ppb. In this example, the fifth day would have an exceedance that would not otherwise have occurred, but the third day would not have an exceedance that otherwise would have occurred, and the fourth day would have been below, rather than at, 75 ppb. In this example, the fourth highest maximum daily concentration under the 30-day average would be 67.5 ppb.

This simplified example illustrates the findings of a more complicated statistical analysis that EPA conducted using a range of scenarios using actual plant data. As described in Appendix B of EPA's 2014 SO2 Nonattainment Guidance, EPA found that the requirement for lower average emissions is highly likely to yield better air quality than is required with a comparably stringent 1-hour limit. Based on analyses described in Appendix B of its 2014 SO2 Nonattainment Guidance, 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 exceedances and better air quality than an emission profile with maximum allowable emissions under a 1-hour emission limit at the critical emission value. 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 question then becomes whether this approach, which is likely to produce a lower number of overall exceedances even though it may produce some unexpected exceedances above the critical emission value, meets the requirement in section 110(a)(1) and 172(c)(1) for SIPs to “provide for attainment” of the NAAQS. For SO2, as for other pollutants, it is generally impossible to design a nonattainment plan in the present that will guarantee that attainment will occur in the future. A variety of factors can cause a well-designed attainment plan to fail and unexpectedly not result in attainment, for example if meteorology occurs that is more conducive to poor air quality than was anticipated in the plan. Therefore, in determining whether a plan meets the requirement to provide for attainment, EPA's task is commonly to judge not whether the plan provides absolute certainty that attainment will in fact occur, but rather whether the plan provides an adequate level of confidence of prospective NAAQS attainment. From this perspective, in evaluating use of a 30-day average limit, EPA must weigh the likely net effect on air quality. Such an evaluation must consider the risk that occasions with meteorology conducive to high concentrations will have elevated emissions leading to exceedances that would not otherwise have occurred, and must also weigh the likelihood that the requirement for lower emissions on average will result in days not having exceedances that would have been expected with emissions at the critical emissions value. Additional policy considerations, such as in this case the desirability of accommodating real world emissions variability without significant risk of violations, are also appropriate factors for the EPA to weigh in judging whether a plan provides a reasonable degree of confidence that the plan will lead to attainment. Based on these considerations, especially given the high likelihood that a continuously enforceable limit averaged over as long as 30 days, determined in accordance with EPA's guidance, will result in attainment, EPA believes as a general matter that such limits, if appropriately determined, can reasonably be considered to provide for attainment of the 2010 SO2 NAAQS.

The 2014 SO2 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 critical emission value), 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. 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 by the candidate 1-hour emission limit to determine a longer term average emission limit that may be considered comparably stringent.5 The 2014 SO2 Nonattainment Guidance also addresses a variety of related topics, such as the potential utility of setting supplemental emission limits, such as mass-based limits, 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 EPA's Guideline on Air Quality Models (40 CFR part 51, Appendix W). 6 In 2005, EPA promulgated the American Meteorological Society/Environmental Protection Regulatory Model (AERMOD) as the Agency's preferred near-field dispersion modeling for a wide range of regulatory applications addressing stationary sources (for example in estimating SO2 concentrations) in all types of terrain based on extensive developmental and performance evaluation. Supplemental guidance on modeling for purposes of demonstrating attainment of the SO2 standard is provided in Appendix A to the April 23, 2014 SO2 nonattainment area SIP guidance document referenced above. 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.

As stated previously, attainment demonstrations for the 2010 1-hour primary SO2 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 SO2 NAAQS. For a short-term (i.e., 1-hour) standard, 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 SO2.

The meteorological data used in the analysis should generally be processed with the most recent version of AERMOD Meteorological Preprocessor (AERMET). 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-hr SO2 National Ambient Air Quality Standard” (U. S. EPA, 2010a).

In accordance with section 172(c) of the CAA, the Pennsylvania attainment plan for the Allegheny County Area includes: (1) An emissions inventory for SO2 for the plan's base year (2011); (2) an attainment demonstration including analyses that locate, identify, and quantify sources of emissions contributing to violations of the 2010 SO2 NAAQS as well as a dispersion modeling analysis of an emissions control strategy for the primary SO2 sources (USS Clairton, Edgar Thomson and Irvin Plants and Harsco Metals) showing attainment of the SO2 NAAQS by the October 4, 2018 attainment date; (3) a determination that the control strategy for the primary SO2 source within the nonattainment areas constitutes RACM/RACT; (4) requirements for RFP toward attaining the SO2 NAAQS in the Area; (5) contingency measures; (6) the assertion that Pennsylvania's existing SIP-approved NNSR program meets the applicable requirements for SO2; and (7) the request that emission limitations and compliance parameters for Clairton, Edgar Thomson and Irvin Plants and Harsco Metals be incorporated into the SIP.

Consistent with CAA requirements (see section 172), an attainment demonstration for a SO2 nonattainment area must include a showing that the area will attain the 2010 SO2 NAAQS as expeditiously as practicable. The demonstration must also meet the requirements of 40 CFR 51.112 and 40 CFR part 51, Appendix W, and include inventory data, modeling results, and emissions reductions analyses on which the state has based its projected attainment. EPA is proposing that the attainment plan submitted by Pennsylvania is sufficient, and EPA is proposing to approve the plan to ensure ongoing attainment.

Pennsylvania's SO2 attainment plan evaluates SO2 emissions for the Allegheny Area comprised of a portion of Allegheny County that is designated nonattainment for the 2010 SO2 NAAQS. There are no precursors to consider for the SO2 attainment plan. SO2 is a pollutant that arises from direct emissions, and therefore concentrations are highest relatively close to the sources and much lower at greater distances due to dispersion. Thus, SO2 concentration patterns resemble those of other directly emitted pollutants like lead, and differ from those of photochemically-formed (secondary) pollutants such as ozone. Pennsylvania's attainment plan appropriately considered SO2 emissions for the Allegheny Area.

States are required under section 172(c)(3) of the CAA to develop comprehensive, accurate and current emissions inventories of all sources of the relevant pollutant or pollutants in the nonattainment area. These inventories provide detailed accounting of all emissions and emissions sources by precursor or pollutant. In addition, inventories are used in air quality modeling to demonstrate that attainment of the NAAQS is as expeditious as practicable. The 2014 SO2 Nonattainment Guidance provides that the emissions inventory should be consistent with the Air Emissions Reporting Requirements (AERR) at Subpart A to 40 CFR part 51.7

For the base year inventory of actual emissions, a “comprehensive, accurate and current” inventory can be represented by a year that contributed to the three-year design value used for the original nonattainment designation. The 2014 SO2 Nonattainment Guidance notes that the base year inventory should include all sources of SO2 in the nonattainment area as well as any sources located outside the nonattainment area which may affect attainment in the area. Pennsylvania appropriately elected to use 2011 as the base year. Actual emissions from all the sources of SO2 in the Allegheny Area were reviewed and compiled for the base year emissions inventory requirement. The primary SO2-emitting point sources located within the Allegheny Area are the USS Mon Valley Works—Clairton, Edgar Thomson and Irvin Plants with SO2 emissions in 2011 of 1468 tons per year (tpy), 1279 tpy, and 419 tpy, respectively. The Harsco Metals facility which is located on the Edgar Thomson plant property is the next largest source with 7 tpy of SO2 emissions in 2011. A more detailed discussion of the emissions inventory for the Allegheny Area and EPA's analysis of the Area can be found in Pennsylvania's October 3, 2017 submittal as well as the emissions inventory Technical Support Document (TSD), which can be found under Docket ID No. EPA-R03-OAR-2017-0730 and which is available online at www.regulations.gov.

Table 1 shows the level of emissions, expressed in tpy, in the Allegheny Area for the 2011 base year by emissions source category.

EPA has evaluated Pennsylvania's 2011 base year emissions inventory for the Allegheny Area and has made the determination that this inventory was developed consistent with EPA's guidance. Therefore, pursuant to section 172(c)(3), EPA is proposing to approve Pennsylvania's 2011 base year emissions inventory for the Allegheny Area.

The attainment demonstration also provides for a projected attainment year inventory that includes estimated emissions for all emission sources of SO2 which are determined to impact the nonattainment area for the year in which the Area is expected to attain the NAAQS. Pennsylvania provided a 2018 projected emissions inventory for all known sources included in the 2011 base year inventory, and EPA finds Pennsylvania appropriately developed this inventory as discussed in the emissions inventory TSD. The projected 2018 emissions are shown in Table 2. Pennsylvania's submittal asserts that the SO2 emissions are expected to decrease by approximately 618 tons, or 18%, by 2018 from the 2011 base year.8 A detailed discussion of the projected emissions for the Allegheny Area and EPA's analysis of emissions can be found in Pennsylvania's October 3, 2017 submittal as well as in the emissions inventory TSD, which can be found under Docket ID No. EPA-R03-OAR-2017-0730 and online at www.regulations.gov.

The SO2 attainment demonstration provides an air quality dispersion modeling analysis to demonstrate that control strategies chosen to reduce SO2 source emissions will bring the Area into attainment by the statutory attainment date of October 4, 2018. The modeling analysis, which the state is to conduct in accordance with Appendix W to 40 CFR part 51 (EPA's Modeling Guidance), is used for the attainment demonstration to assess the control strategy for a nonattainment area and establish emission limits that will provide for attainment. In accordance with Appendix W, three years of prognostic meteorological data was used to simulate the dispersion of pollutant plumes from multiple point, area, or volume sources across the averaging times of interest. 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. An attainment plan must provide for attainment under all allowable scenarios of operation for each source based on the maximum allowable emissions.

ACHD provided an analysis which was developed in accordance with EPA's Modeling Guidance and the 2014 SO2 Nonattainment Guidance, and was prepared using the EPA dispersion modeling system, AERMOD. This modeling demonstration also utilized the Weather Research and Forecasting (WRF) model to generate prognostic meteorological data. EPA's Mesoscale Model Interface Program (MMIF) was used to extract the prognostic meteorological data which was processed using AERMET, a pre-processor to AERMOD, in accordance with 40 CFR part 51. EPA notes that our most recent version of 40 CFR part 51 Appendix W allows for prognostic meteorological data to be used in AERMOD. The prognostic meteorological data was extracted and processed following the methodology outlined in EPA's updated Appendix W and other applicable guidance. In the particular circumstances in this Area, in which local topographical influences are likely to be channeling flows in a manner prone to yield different flows for different facilities in the Area, EPA believes that the prognostic meteorological data generated by ACHD are likely to provide a better characterization of winds in this Area than application of a single hourly wind speed and direction across the Area. EPA also conducted its own land use survey (using the methods of Auer), finding that about 70 percent (%) of the Area within an area out to three kilometers from the main sources in the Area may be considered rural land use, which supports ACHD's use of rural dispersion coefficients in its modeling analysis. Further discussion of ACHD's development of these meteorological data and EPA's land use survey can be found in EPA's modeling TSD, which can be found under Docket ID No. EPA-R03-OAR-2017-0730.

ACHD characterized USS's Clairton Coke Works fugitive coke oven emissions using an alternative modeling technique, which shows significantly better model performance over the regulatory version of AERMOD. Given the high temperatures of these fugitive emissions, ACHD recognized that the plume rise and initial plume characteristics vary by hour reflecting hourly variations in meteorology in a manner that is not addressed in simple treatments of volume sources in AERMOD. Therefore, ACHD used an alternate method, using EPA's Buoyant Line and Point Source Model (BLP), to determine hourly values of these parameters. Since AERMOD does not provide for volume sources to have heat flux or otherwise to have plume rise, ACHD used hourly release heights reflecting the plume height for each hour's meteorology estimated by the BLP Plume Rise module. Similarly, ACHD used hourly values which characterize the initial width and height of the release based on hourly plume dimensions determined by BLP. Fugitive emissions were then included in AERMOD for each of the multiple volume sources used to represent the coke batteries in the Area by using volume sources with hourly release heights and initial dispersion coefficients determined in this manner, as contained in an hourly emission rate file. This alternative method is referred to as the BLP/AERMOD Hybrid approach.

As noted in ACHD's modeling protocol document (See Appendix A of Pennsylvania's October 3, 2017 submittal), the procedure for handling USS's coke oven fugitive emissions in the dispersion modeling analysis was initially developed and used for previous particulate matter smaller than 10 microns in diameter (PM10) SIP work completed by ACHD and discussed in EPA Model Clearinghouse 9 Memos from 1991 through 1994 (91-III-12, 93-III-06, and 94-III-02). (See Modeling Protocol Addendum to Appendix A of Pennsylvania's October 3, 2017 submittal for more information on prior Model Clearinghouse memos). The original algorithms were developed for the ACHD PM10 SIP workgroup in 1994 and are currently being used by ACHD with additional revisions to the BLP Plume Rise program. This method is considered an alternative model due to the inclusion of the BLP model within the AERMOD dispersion model system (starting with AERMOD version 15181) using the BUOYLINE source pathway keyword. ACHD began its SIP modeling development for the Area using AERMOD version 15181 then switched to version 1616r for its final modeling demonstration, which was the current regulatory version at the time of submittal. Use of an alternative model needs to be approved under section 3.2 of Appendix W—Guideline on Air Quality Models—with concurrence from EPA's Model Clearinghouse.

A demonstration in support of the use of the BLP/AERMOD Hybrid approach for source characterization of the coke oven fugitive emissions for PM10 was undertaken by ACHD as part of its 2012 Annual Fine Particle Matter (particulate matter less than 2.5 microns in diameter, PM2.5) attainment plan preparation. While the demonstration was used to support this approach with PM10 (simulating dispersion of primary particulate matter), in AERMOD both PM10 and SO2 are treated as inert pollutants, therefore, they would have similar dispersion characteristics and are directly scalable and comparable. Thus, EPA finds that this approach is applicable for all primary pollutants including SO2. ACHD prepared the analysis and submitted an alternative modeling request under section 3.2.2 (b)(2) and (d) of Appendix W to EPA Region 3's Regional Administrator on July 27, 2018. EPA staff have reviewed ACHD's analysis and found that the BLP/AERMOD Hybrid approach provides better model performance of the impacts from the coke oven fugitive emissions than the regulatory BUOYLINE source methodology in AERMOD. This result is consistent with the dispersion model performance analyses ACHD described in Appendix A-2 Modeling Protocol Addendum, G and I of Pennsylvania's October 3, 2017 submittal.

EPA's review and approval of ACHD's analysis supporting the use of the BLP/AERMOD Hybrid approach followed the EPA Model Clearinghouse concurrence process as prescribed in section 3.2 of Appendix W. Following receipt of ACHD's analysis on July 27, 2018, EPA Region 3 recommended approval of this alternative modeling approach to the EPA Model Clearinghouse on August 7, 2018. The EPA Model Clearinghouse concurred with Region 3's recommended approval on August 10, 2018. EPA Region 3 then approved the use of this alternative model by letter from its Regional Administrator to ACHD dated August 16, 2018. EPA is providing notice in this rulemaking proposal that an alternative modeling approach using the BLP/AERMOD Hybrid approach to simulate the fugitive coke oven battery emissions was used for ACHD's SO2 attainment plan and that its use was approved by EPA. ACHD's request to use this alternative modeling approach, EPA Region 3's analysis of ACHD's request, and the EPA Model Clearinghouse concurrence is included in the docket for this rulemaking action and can be found under Docket ID No. EPA-R03-OAR-2017-0730 and online at www.regulations.gov. EPA is taking public comment on proposing to approve the SIP based on the approved use of ACHD's alternative modeling approach.

The primary SO2 sources included in the SIP modeling demonstration are the Harsco Metals facility and the three USS Mon Valley Works facilities—Clairton, Edgar Thomson and Irvin Plants. The modeling properly characterized source limits, local meteorological data, background concentrations, and provided an adequate model receptor grid to capture maximum modeled concentrations. Using the EPA conversion factor for the SO2 NAAQS, the final modeled design value for the Allegheny Area (196.17 microgram per meter cubed, µg/m3), is less than 75 ppb.10 EPA has reviewed the modeling that Pennsylvania submitted to support the attainment demonstration for the Allegheny Area and has determined that the modeling is consistent with CAA requirements, Appendix W, and EPA's guidance for SO2 attainment demonstration modeling as discussed above. Therefore, EPA is proposing to determine that the analysis demonstrates that the source limits used in the modeling demonstration show attainment with the 1-hour SO2 NAAQS. EPA's analysis of the modeling is discussed in more detail in EPA's modeling TSD, which can be found under Docket ID No. EPA-R03-OAR-2017-0730 and online at www.regulations.gov for this rulemaking. EPA proposes to conclude that the modeling provided in the attainment plan shows that the Allegheny Area will attain the 2010 1-hour primary SO2 NAAQS by the attainment date.

CAA section 172(c)(1) requires that each attainment plan provide for the implementation of all reasonably available control measures (i.e., RACM) as expeditiously as practicable and shall provide for attainment of the NAAQS. EPA interprets RACM, including RACT, under section 172, as measures that a state determines to be both reasonably available and contribute to attainment as expeditiously as practicable “for existing sources in the area.” In addition, CAA section 172(c)(6) requires plans to include enforceable emission limitations and control measures as may be necessary or appropriate to provide for attainment by the attainment date.

Pennsylvania's October 3, 2017 submittal discusses facility-specific control measures, namely SO2 emission limits for Harsco Metals and for the USS Mon Valley Works facilities—Clairton, Edgar Thomson and Irvin Plants, that were developed through the air dispersion modeling submitted by ACHD. The modeling analysis is discussed in section IV.C. Air Quality Modeling of this proposed rulemaking and in the Modeling TSD. ACHD asserts that the combination of controls and the resulting emission limits at the three USS facilities and Harsco Metals is sufficient for the Allegheny Area to meet the SO2 NAAQS and serve as RACT/RACM.

Controls at the Clairton and Edgar Thomson plants represent the majority of SO2 reductions within the Allegheny Area. As noted by ACHD, the Clairton Plant is the largest coke plant in North America. The Clairton Plant operates 10 coke batteries and produces approximately 13,000 tons of coke per day along with approximately 225 million cubic feet of coke oven gas (COG). The COG is used as fuel at all of the Mon Valley Works facilities. At the Clairton Plant, ACHD explained in its attainment plan that upgrades to the 100 and 600 Vacuum Carbonate Units (VCUs) will reduce the content of hydrogen sulfide (H2S) in the downriver COG utilized at all Mon Valley Works plants. The 100 VCU upgrade was completed in 2016 and the 600 VCU upgrade will add redundant controls for the downriver COG line. Full operation of both upgraded units will be completed on or before October 4, 2018 as required by permit. Source monitoring to demonstrate continuous efficient operation of the Clairton VCU system is also required to be complete by October 4, 2018. In addition, a tail gas recycling project at the Shell Claus off-gas Treatment (SCOT) plant within the Clairton plant will reroute sulfur-rich gases back into the by-products facility at Clairton during planned and unplanned outages and will be completed on or before October 4, 2018 as required by permit.

In its modeling analysis, ACHD determined critical emission values (CEV) with an hourly average for SO2 sources. However, based on the variability in sulfur content of the COG, ACHD determined that several sources warrant a limit with a longer-term averaging period. As discussed previously, EPA believes that establishment of emission rate limits with averaging periods longer than one hour may reasonably be found to provide for attainment if specified criteria recommended in EPA's 2014 SO2 Nonattainment Guidance are met.

The objective of ACHD's analysis of the variability of COG sulfur content is to determine the adjustment factor that can be multiplied times the modeled CEVs to compute longer term limits that will require a comparable degree of control as would be required by 1-hour limits at the CEVs. EPA's 2014 SO2 Nonattainment Guidance states that “. . . air agencies may determine that an area could attain through a control strategy that will not significantly change the emission distribution (as may be true, for example, for a strategy involving a switch to lower sulfur coal with similar sulfur content variability or for a strategy involving enhancement of existing control equipment). Where the control strategy does not significantly change the distribution, the source's current emission distribution may be the best indicator of the source's post-control emission distribution.” In this case, the upgrades to the VCU unit at the USS Clairton plant reduce the H2S content in the COG but are unlikely to cause significant changes in the distribution of emissions, except to the extent that installation of redundant sulfur capture systems is likely to reduce the frequency and magnitudes of emission spikes from the facilities burning this COG. ACHD used the most recent three years of operating data (2014-2016) available at the time of its analysis to analyze the variability in H2S content in the COG for the four primary COG process streams used to deliver fuel to the USS Mon Valley Works plants (Unit 1, Unit 2, A Line and B Line). All COG is produced and desulfurized at the Clairton plant and then distributed via pipeline to the other two plants. USS upgraded its COG sulfur removal systems in April 2016, therefore ACHD separately analyzed the 8 months of data post-control to compare whether the distribution of hydrogen sulfide (H2S) content would be similar before and after controls. After extrapolating the post-control data, the distribution of H2S content is similar to the distribution before controls thus, ACHD concluded that the use of the full 3 years of data is representative of overall variability and, that these upgrades are not expected to have a significant effect on variability or on the degree of adjustment to yield a comparably stringent longer term average limit. Analyzing variability of fuel quality is not a direct means of analyzing the variability of emissions (which also factors in the variability of the quantity of fuel burned). On the other hand, the facilities at issue here have relatively stable operations, and a complete analysis would also factor in the degree to which the installation of redundant control systems reduces emission spikes and thereby reduces variability. For these reasons, EPA believes that ACHD's analysis should provide a reasonable approximation of the prospective variability of emissions following implementation of the controls in the attainment plan and a reasonable approximation of the degree of adjustment needed to determine the longer term limits that are comparably stringent to the 1-hour limits that would otherwise be established.

In accordance with the methods EPA recommended in Appendix C to its 2014 SO2 Nonattainment Guidance, adjustment factors were determined from the variability in sulfur content in each line and were applied to the modeled CEV for the processes using that COG to determine an appropriate emission limit with a 30-day averaging period that is of comparable stringency to the 1-hour CEV. The 30-day average SO2 emission limit adjustment factor is 0.717 for emission units burning COG from Unit 1 Line, 0.797 for units burning COG from Unit 2 Line, 0.848 for units burning COG from A Line, and 0.834 for units burning COG from B Line. As recommended in 2014 SO2 Nonattainment Guidance, ACHD determined that for sources with a 30-day averaging period a supplementary 24-hour limit not to be exceeded for 3 consecutive days should be applied in order to limit the frequency and magnitude of occurrences of elevated emissions. Adjustment factors for 24-hour SO2 emission limits were calculated for each line and applied to the modeled CEV to determine the emission limit with a 24-hour averaging period. The 24-hour average SO2 emission limit adjustment factors for emission units burning COG are 0.914 for Unit 1 Line COG, 0.898 for Unit 2 Line COG, 0.927 for A Line COG, and 0.944 for B Line COG.

Table 3 shows the modeled CEV, the 30-day and 24-hour average adjustment factors and the resulting comparable 30-day and 24-hour average SO2 emission rate, calculated by applying the adjustment factor to the critical emissions value, for units affected by COG sulfur reduction projects and units partially affected by the COG controls in combination with other fuels at the Clairton plant. Table 3 also shows new SO2 limits for units taking reductions to their allowable limits at the Clairton plant.

The blueline tilefish fishery north of the North Carolina/Virginia border is managed by the Mid-Atlantic Fishery Management Council under the Tilefish Fishery Management Plan (FMP), which outlines the Council's process for establishing annual specifications. Blueline tilefish south of the North Carolina/Virginia border are managed by the South Atlantic Fishery Management Council under the Snapper Grouper FMP.

The Tilefish FMP requires the Mid-Atlantic Council to recommend acceptable biological catch (ABC), annual catch limit (ACL), annual catch target (ACT), total allowable landings (TAL), and other management measures for the commercial and recreational sectors of the fishery, for up to three years at a time. The Council's Scientific and Statistical Committee (SSC) provides an ABC recommendation to the Council to derive these catch limits. The Council makes recommendations to NMFS that cannot exceed the recommendation of its SSC. The Council's recommendations must include supporting documentation concerning the environmental, economic, and social impacts of the recommendations. We are responsible for reviewing these recommendations to ensure that they achieve the FMP objectives and are consistent with all applicable laws. Following review, NMFS publishes the final specifications in the Federal Register.

A benchmark stock assessment was completed in late 2017 for the blueline tilefish population along the entire East Coast through the Southeast Data, Assessment, and Review process (SEDAR 50). Within the assessment, the coast-wide population was modeled separately north and south of Cape Hatteras, North Carolina, because of data limitations within the northern area. To assist in developing an ABC recommendation, the Mid- and South Atlantic Councils' SSCs, as well as staff from the NMFS Northeast and Southeast Fisheries Science Centers formed a joint subcommittee to examine available information for the region north of Cape Hatteras, and to develop separate catch advice for each Councils' jurisdiction.

At its March 2018 meeting, the Mid-Atlantic SSC reviewed the results from the SEDAR 50 benchmark stock assessment as well as additional work using the Data-Limited Methods Toolkit and derived a recommendation for acceptable biological catch (ABC) using the Mid-Atlantic Council's risk policy. The resulting ABC was 179,500 lb (81.4 mt) annually for 2019-2021 for the region north of Cape Hatteras. The SSC then followed the recommendation of the Joint Mid- and South Atlantic Blueline Tilefish Subcommittee to assign 56 percent of that ABC to the Mid-Atlantic Council (north of the VA/NC border) and 44 percent to the South Atlantic Council. This percentage breakdown is based on the catch distribution from the 2017 Pilot Blueline Tilefish Longline Survey.

The Mid-Atlantic Council took final action on 2019-2021 quota specifications for the blueline tilefish fishery at its April 2018 meeting, and submitted its recommended specifications to us on August 17, 2018. A summary of the Council's recommended specifications is shown below in Table 1.

The Council's recommendations are consistent with the SSC's recommended ABC, and represent an approximate 15-percent increase in ABC from 2018.

The Mid-Atlantic Council recommended increasing the commercial possession limit from 300 (136 kg) to 500 lb (227 kg) to assist the commercial fishery in harvesting the full commercial TAL. The Council was concerned that if fishing effort increases substantially, the small commercial TAL could be landed quickly at the 500-lb (227-kg) limit. To mitigate that concern, the Council included an inseason trigger, authorizing the Regional Administrator to reduce the possession limit to 300 lb (136 kg) per trip when 70 percent of the TAL has been landed.

The Council proposed no change to the recreational fishery beyond the increase to the recreational TAL (Table 1). The recreational fishery is open from May 1 through October 31 of each year and closed from November 1 through April 30. The bag limit for blueline tilefish depends on the type of fishing vessel being used. On a private boat, each angler may keep up to three blueline tilefish. On an U.S. Coast Guard uninspected for-hire vessel (charter boat), each angler may keep up to five blueline tilefish. On an U.S. Coast Guard inspected for-hire vessel (party boat), each angler may keep up to seven blueline tilefish.

Pursuant to section 304(b)(1)(A) of the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tilefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Council prepared an analysis of the potential economic impacts of the action, which is included in the draft EA for this action and supplemented by information contained in the preamble of this proposed rule.

For Regulatory Flexibility Act purposes, NOAA's National Marine Fisheries Service has established a size standard for small businesses, including their affiliated operations, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as small if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11.0 million for all its affiliated operations worldwide. The Small Business Administration has established size standards for all other major industry sectors in the U.S., including defining for-hire fishing firms (NAICS code 487210) as small when their receipts are less than $7.5 million.

The measures proposed in this action apply to vessels that hold a Federal permit for blueline tilefish. Some entities own multiple vessels with tilefish permits. In 2017, 2,028 separate vessels held tilefish permits. Those vessels were owned by 1,519 entities. Using the size definitions above, 1,508 are small business entities, comprised of 886 small commercial fishing entities, 242 small for-hire entities, and 380 had no revenue in 2017 (but are considered small businesses). For those small businesses with revenues, their average total revenues were $0.55 million in 2017.

This action would increase the blueline tilefish commercial total allowable landings (TAL) from 23,263 lb (10.5 mt) to 26,869 lb (12.2 mt) (about 15 percent) and increase the commercial trip limit from 300 lb (136 kg) to 500 lb (227 kg) per trip. The trip limit would reduce to 300 lb (136 kg) when 70 percent of the commercial quota has been landed. The recreational TAL would increase from 62,262 lb (28.2 mt) to 71,912 lb (32.6 mt) (about 15 percent). Therefore, the potential impact of this action on small entities is positive, but limited by the relatively low TAL.

Given the small potential economic impact of the management measures proposed, this action will not have a significant economic impact on a substantial number of small entities.

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows: