[Federal Register: May 5, 2010 (Volume 75, Number 86)]
[Rules and Regulations]
[Page 24394]
[DOCID:fr05my10-7]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Parts 556 and 558

[Docket No. FDA-2010-N-0002]

Animal Drugs, Feeds, and Related Products; Withdrawal of Approval
of a New Animal Drug Application; Buquinolate; Coumaphos

AGENCY: Food and Drug Administration, HHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations by removing those portions that reflect approval of
two new animal drug applications (NADAs). In a notice published
elsewhere in this issue of the Federal Register, FDA is withdrawing
approval of these NADAs.

DATES:  This rule is effective May 17, 2010.

FOR FURTHER INFORMATION CONTACT: John Bartkowiak, Center for Veterinary
Medicine (HFV-212), Food and Drug Administration, 7519 Standish Pl.,
Rockville, MD 20855,<PHONE_NUMBER>, e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Purina Mills, Inc., P.O. Box 66812, St.
Louis, MO 63166-6812 has requested that FDA withdraw approval of NADA
42-117 for Purina 6 Day Worm-Kill Concentrate (coumaphos) because the
product is no longer manufactured or marketed.
    In addition, Pharmacia & Upjohn Co., a Division of Pfizer, Inc.,
235 East 42d St., New York, NY 10017 has requested that FDA withdraw
approval of NADA 45-738 for use of LINCOMIX (lincomycin) and BONAID
(buquinolate) single-ingredient Type A medicated articles to make two-
way, combination drug Type C medicated broiler feed because buquinolate
is no longer manufactured or marketed.
    In a notice published elsewhere in this issue of the Federal
Register, FDA gave notice that approval of NADA 42-117 and NADA 45-738,
and all supplements and amendments thereto, is withdrawn, effective May
17, 2010. As provided in the regulatory text of this document, the
animal drug regulations are amended to reflect these withdrawals of
approval.
    In 1995, the approval of NADA 34 716 for BONAID Type A medicated
article was voluntarily withdrawn (60 FR 37651, July 21, 1995) and
approved conditions of use for buquinolate and all its approved
combinations in 21 CFR 558.105, including combination with lincomycin
under NADA 45-738, were removed (60 FR 39847, July 21, 1995). At this
time, the tolerances for residues of buquinolate in edible products of
chickens and its listing as a Category I drug in 21 CFR 558.4 are being
removed.
    This rule does not meet the definition of ``rule'' in 5 U.S.C.
804(3)(A) because it is a rule of ``particular applicability.''
Therefore, it is not subject to the congressional review requirements
in 5 U.S.C. 801-808.

List of Subjects

21 CFR Part 556

    Animal drugs, Foods.

21 CFR Part 558

    Animal drugs, Animal feeds.

0
Therefore, under the Federal Food, Drug, and Cosmetic Act and under the
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Center for Veterinary Medicine, 21 CFR parts 556 and
558 are amended as follows:

PART 556--TOLERANCES FOR RESIDUES OF NEW ANIMAL DRUGS IN FOOD

0
1. The authority citation for 21 CFR part 556 continues to read as
follows:

    Authority: 21 U.S.C. 342, 360b, 371.

Sec.  556.90  [Removed]

0
2. Remove Sec.  556.90.

PART 558--NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS

0
3. The authority citation for 21 CFR part 558 continues to read as
follows:

    Authority: 21 U.S.C. 360b, 371.

Sec.  558.4  [Amended]

0
4. In Sec.  558.4, in paragraph (d), in the ``Category I'' table,
remove the entry for ``Buquinolate''.

Sec.  558.185  [Amended]

0
5. In Sec.  558.185, remove paragraph (b)(2) and redesignate paragraph
(b)(3) as paragraph (b)(2).

    Dated: April 30, 2010.
Bernadette Dunham,
Director, Center for Veterinary Medicine.
[FR Doc. 2010-10564 Filed 5-4-10; 8:45 am]
BILLING CODE 4160-01-S


[Federal Register Volume 85, Number 98 (Wednesday, May 20, 2020)]
[Notices]
[Pages 30777-30779]
[FR Doc No: 2020-10819]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88876; File No. SR-CboeEDGX-2020-020]

Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice
of Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend Its Fees Schedule

May 14, 2020.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on May 1, 2020, Cboe EDGX Exchange, Inc. (the ``Exchange'' or
``EDGX'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Cboe EDGX Exchange, Inc. (the ``Exchange'' or ``EDGX Options'') is
filing with the Securities and Exchange Commission (``Commission'') a
proposed rule change to amend its Fees Schedule. The text of the
proposed rule change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://markets.cboe.com/us/options/regulation/rule_filings/edgx/), at the Exchange's Office of the Secretary, and at
the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend its Fees Schedule for its equity
options platform (EDGX Options), effective May 1, 2020.
    The Exchange first notes that it operates in a highly competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient. More specifically, the
Exchange is only one of 16 options venues to which market participants
may direct their order flow. Based on publicly available information,
no single options exchange has more than 20% of the market share and
currently the Exchange represents only 4% of the market share.\3\ Thus,
in such a low-concentrated and highly competitive market, no single
options

exchange, including the Exchange, possesses significant pricing power
in the execution of option order flow. The Exchange believes that the
ever-shifting market share among the exchanges from month to month
demonstrates that market participants can shift order flow, or
discontinue to reduce use of certain categories of products, in
response to fee changes. Accordingly, competitive forces constrain the
Exchange's transaction fees, and market participants can readily trade
on competing venues if they deem pricing levels at those other venues
to be more favorable.
---------------------------------------------------------------------------

    \3\ See Cboe Global Markets U.S. Options Market Volume Summary
(April 27, 2020), available at https://markets.cboe.com/us/options/market_statistics/.
---------------------------------------------------------------------------

    The Exchange's Fees Schedule sets forth standard rebates and rates
applied per contract. For example, the Exchange provides standard
rebates ranging from $0.01 up to $0.21 per contract for orders that add
liquidity in both Penny and Non-Penny Securities and assesses fees
ranging from $0.01 up to $0.75 per contract for orders that remove
liquidity in both Penny and Non-Penny Securities. The Exchange also
offers tiered pricing which provides Members \4\ opportunities to
qualify for higher rebates or reduced fees where certain volume
criteria and thresholds are met. Footnote 5 of the Fees Schedule
provides that when orders are submitted with a Designated Give Up,\5\
the applicable rebates (i.e., any standard rebate or applicable tier
rebates) for orders yielding fee code BC,\6\ NC,\7\ PC,\8\ SC,\9\
QA\10\ and QM \11\ are provided to the Member who routed the order to
the Exchange. Now, the Exchange proposes to amend footnote 5 to include
fee codes ZA\12\ and ZB \13\ in the aforementioned list of fee codes.
---------------------------------------------------------------------------

    \4\ See Exchange Rule 1.5(n).
    \5\ A Designated Give Up of a User refers to a Clearing Member
identified to the Exchange by that User as a Clearing Member the
User requests the ability to give up and that has been processed by
the Exchange as a Designated Give Up. See Exchange Rule 21.12(b).
    \6\ Orders yielding fee code BC represent AIM Agency (Customer)
orders.
    \7\ Orders yielding fee code NC represent Customer, Non-Penny
orders.
    \8\ Orders yielding fee code PC represent Customer, Penny Pilot
orders.
    \9\ Orders yielding fee code SC represent SAM Agency (Customer)
orders.
    \10\ Orders yielding fee code QA represent QCC Agency (Customer)
orders.
    \11\ Orders yielding fee code QM represent QCC Agency (Non-
Customer) orders.
    \12\ Orders yielding fee code ZA represent Complex, Customer
(contra Non-Customer), Penny orders.
    \13\ Orders yielding fee code ZB represent Complex, Customer
(contra Non-Customer), Non-Penny orders.
---------------------------------------------------------------------------

    Under Rule 21.12 a Member acting as an options routing firm on
behalf of one or more other Exchange Members (a ``Routing Firm'') is
able to route orders to the Exchange and to immediately give up the
party (a party other than the Routing Firm itself or the Routing Firm's
own clearing firm) who will accept and clear any resulting transaction.
Because the Routing Firm is responsible for the decision to route the
order to the Exchange, the Exchange provides the rebate to the Routing
Firm when the orders yield fee codes BC, NC, PC, SC, QA and QM. The
Exchange believes that the Routing Firm should also be provided the
rebate when the orders yield fee codes ZA and ZB as those orders also
represent liquidity adding customer orders for which the Routing Firm
is responsible for the decision to route the order to the Exchange. In
connection with this change, the Exchange proposes to append footnote 5
to fee codes ZA and ZB in the Fee Codes and Associated Fees table of
the Fees Schedule.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations
thereunder that are applicable to a national securities exchange, and,
in particular, with the requirements of Section 6 of the Act.\14\
Specifically, the Exchange believes that the proposed rule change is
consistent with Section 6(b)(4) of the Act,\15\ in that it provides for
the equitable allocation of reasonable dues, fees and other charges
among Members and other persons using any facility or system which the
Exchange operates or controls.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78f.
    \15\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The Exchange notes that the U.S. options markets are highly
competitive, and the proposed fee structure is intended to provide an
incentive for Members to direct orders to the Exchange. The proposal
would apply to fee codes ZA and ZB related to customer liquidity adding
orders, because these, along with the fee codes already included in
Footnote 5, are the primary rebates in place on the Exchange and
reflect the primary liquidity that the Exchange is seeking to attract
from Routing Firms that are able to identify Designated Give Ups.\16\
The Exchange believes the proposed amendment is reasonable because the
Exchange already provides such rebates to the Routing Firm for orders
yielding similar fee codes for customer liquidity adding orders (i.e.,
orders yielding fee codes BC, NC, PC, QA, and SC). Additionally, the
Exchange believes that the proposed amendments to its Fees Schedule
will enhance the Exchange's competitive position and will result in
increased liquidity on the Exchange, to the benefit of all Exchange
participants. Therefore, the Exchange believes that providing rebates
is equitable and reasonable and not unfairly discriminatory as it would
allow the Exchange, in the context of the give up procedure described
above, to provide a rebate directly to the party making the routing
decision to direct certain orders to the Exchange (i.e., the Routing
Firm), which is consistent with both the Exchange's historic practice
and the purpose behind a rebate (i.e., to incentivize the order being
directed to the Exchange).
---------------------------------------------------------------------------

    \16\ The Exchange notes that Market-Makers may only give up its
respective Guarantor, as defined by Rule 21.12(b)(2). See Exchange
Rule 21.12(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange believes its proposed amendments to its Fees Schedule
would not impose any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act. The Exchange
does not believe that the proposed change represents a significant
departure from previous pricing offered by the Exchange or its
competitors. Additionally, Members may opt to disfavor the Exchange's
pricing if they believe that alternatives offer them better value. The
Exchange believes that its proposal will incentivize Routing Firms that
are utilizing the give up procedure to direct orders yielding fee code
ZA and ZB to the Exchange, and will enhance the Exchange's competitive
position by resulting in increased liquidity on the Exchange, thereby
providing more opportunities for customers to receive best executions.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange neither solicited nor received comments on the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \17\ and paragraph (f) of Rule 19b-4 \18\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of

the purposes of the Act. If the Commission takes such action, the
Commission will institute proceedings to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78s(b)(3)(A).
    \18\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CboeEDGX-2020-020 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-CboeEDGX-2020-020. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish tomake available publicly. All submissions
should refer to File Number SR-CboeEDGX-2020-020 and should be
submitted on or before June 10, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
---------------------------------------------------------------------------

    \19\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-10819 Filed 5-19-20; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: November 23, 2007 (Volume 72, Number 225)]
[Notices]
[Page 65800-65801]
[DOCID:fr23no07-118]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-56799; File No. SR-Phlx-2007-60]

 Self-Regulatory Organizations; Philadelphia Stock Exchange,
Inc.; Order Approving a Proposed Rule Change Relating to Structured
Equity Products

November 15, 2007.
    On August 14, 2007, the Philadelphia Stock Exchange, Inc. (``Phlx''
or ``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to update its rules and its fee schedule regarding
the listing of equity securities. The proposed rule change was
published for comment in the Federal Register on October 16, 2007.\3\
The Commission received no comments on the proposal.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 56626 (October 5,
2007), 72 FR 58711 (``Notice'').
---------------------------------------------------------------------------

    According to the Exchange, currently, the vast majority of equity
securities that trade on Phlx are listed on other exchanges and traded
on the Phlx pursuant to unlisted trading privileges. Phlx has a series
of rules (the ``800 Series'') that create standards governing both the
issuer of the security and the security to be listed and traded on
Phlx. To attract the listing of structured equity

securities on the Exchange (``Structured Equity Products''),\4\ Phlx
proposes modifications to the 800 Series that would accommodate the
specific attributes of many of those types of securities.\5\
---------------------------------------------------------------------------

    \4\ For purposes of this proposed rule change, Structured Equity
Products are securities listed pursuant to the categories in Phlx
Rule 803 entitled Other Securities, Equity Linked Notes, Basket
Linked Notes, Index Linked Exchangeable Notes and Index Linked
Securities. See Phlx Rule 803(f), (h), (k), (m) and (n).
    \5\ The Exchange proposes to modify Phlx Rules 802, 806 (Initial
Public Offerings), 807 (Registration Under the Exchange Act), 837
(Annual Reports) and the Phlx Fee Schedule as described in the
Notice.
---------------------------------------------------------------------------

    The Commission finds that the proposed rule change is consistent
with Section 6(b) of the Act,\6\ in general, and with Section 6(b)(5)
of the Act,\7\ which requires that the rules of a national securities
exchange be designed to, among other things, promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system, and, in
general, to protect investors and the public interest.\8\ The
Commission believes that the proposed rule change should promote
competition among national securities exchanges and should benefit
investors by removing impediments to the listing and trading of
Structured Equity Products. The Commission also notes that the proposed
amendments to Phlx Rules 807 and 837 would conform those rules with
similar provisions of another national securities exchange.\9\
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(5).
    \8\ In approving this rule change, the Commission notes that it
has considered the proposal's impact on efficiency, competition, and
capital formation. See 15 U.S.C. 78c(f).
    \9\ See Sections 210 and 1101 of the American Stock Exchange
Company Guide.
---------------------------------------------------------------------------

    In addition, the Commission finds that the proposed rule change
furthers the objectives of Section 6(b)(4) of the Act,\10\ which
requires that the Exchange's rules provide for an equitable allocation
of reasonable dues, fees, and other charges among Exchange members and
issuers and other persons using its facilities. The Exchange also
proposes that, for the two Structured Equity Products that it currently
lists (Pharmaceutical Basket Opportunity Exchangeable Securities and
Biotechnology Basket Opportunity Exchangeable Securities), the $500 per
month continuing listing fee begin in January 2008 because the issuer
of those securities was invoiced the current annual continuing listing
fee ($1,250 for the first product and $250 for the second product) in
January 2007. The Commission believes that, with respect to the two
Structured Equity Products currently listed on Phlx, it is appropriate
for the Exchange to delay application of the proposed continuing
listing fee until January 2008 \11\ because the issuer of those
products may have reasonably expected that the current fee would cover
its obligation for these two products through the end of 2007.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f(b)(4).
    \11\ By contrast, new Structured Equity Products will begin to
pay the proposed fee in the month subsequent to initial listing on
Phlx.
---------------------------------------------------------------------------

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\12\ that the proposed rule change (SR-Phlx-2007-60) be, and hereby
is, approved.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
---------------------------------------------------------------------------

    \13\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-22776 Filed 11-21-07; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 85, Number 218 (Tuesday, November 10, 2020)]
[Rules and Regulations]
[Pages 71547-71553]
[FR Doc No: 2020-23030]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2020-0109; FRL-10014-84-Region 9]

Partial Approval and Partial Disapproval of Air Quality
Implementation Plans; Arizona; Nonattainment Plan for the Hayden SO2
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is finalizing a
partial approval and partial disapproval of an Arizona state
implementation plan (SIP) revision for attaining the 2010 1-hour
primary sulfur dioxide (SO2) national ambient air quality
standard (NAAQS or ``standard'') for the Hayden SO2
nonattainment area (NAA). This SIP revision (hereinafter called the
``Hayden SO2 Plan'' or ``Plan'') includes Arizona's
attainment demonstration and other elements required under the Clean
Air Act (CAA or ``Act''). The EPA is approving the base year and
projected emissions inventories and affirming that the new source
review requirements for the area have been met. We are disapproving the
attainment demonstration, as well as other elements of the Plan tied to
this demonstration, namely, the requirement for meeting reasonable
further progress (RFP) toward attainment of the NAAQS, reasonably
available control measures and reasonably available control technology
(RACM/RACT), enforceable emissions limitations and control measures,
and contingency measures.

DATES: This rule will be effective on December 10, 2020.

ADDRESSES: The EPA has established a docket for this action under
Docket No. EPA-R09-OAR-2020-0109. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information. If you need assistance
in a language other than English or if you are a person with
disabilities who needs a reasonable accommodation at no cost to you,
please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Ashley Graham, EPA Region IX, Air
Division, Air Planning Office, 75 Hawthorne St., San Francisco, CA
94105. By phone:<PHONE_NUMBER> or by email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.

Table of Contents

I. Background
II. Public Comments and EPA Responses
    A. Comments From ADEQ
    B. Comments From Asarco
III. The EPA's Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On June 22, 2010, the EPA promulgated a new 1-hour primary
SO2 NAAQS of 75 parts per billion (ppb) (hereinafter called
``the 2010 SO2 NAAQS'' or ``the SO2 NAAQS'').
This standard is met at an ambient air quality monitoring site when the
3-year average of the annual 99th percentile of daily maximum 1-hour
average concentrations does not exceed 75 ppb, as determined in
accordance with appendix T of 40 CFR part 50.\1\ On August 5, 2013, the
EPA designated 29 areas of the country as nonattainment for the 2010
SO2 NAAQS, including the Hayden SO2 NAA within
Arizona.\2\ These area designations became effective on October 4,
2013. Section 191(a) of the CAA directs states to submit SIP revisions
for areas designated as nonattainment for the SO2 NAAQS to
the EPA within 18 months of the effective date of the designation,
i.e., in this case by no later than April 4, 2015. Under CAA section
192(a), these SIP submissions are required to include measures that
will bring the NAA into attainment of the NAAQS as expeditiously as
practicable, but no later than five years from the effective date of
designation. The attainment date for the Hayden SO2 NAA was
October 4, 2018.
---------------------------------------------------------------------------

    \1\ 75 FR 35520 (codified at 40 CFR 50.17(a)-(b)).
    \2\ 78 FR 47191 (codified at 40 CFR part 81, subpart C).
---------------------------------------------------------------------------

    Nonattainment plans for SO2 must meet sections 110, 172,
191, and 192 of the CAA. The EPA's regulations governing nonattainment
SIP submissions are set forth at 40 CFR part 51, with specific
procedural requirements and control strategy requirements residing at
subparts F and G, respectively. Soon after Congress enacted the 1990
Amendments to the CAA, the EPA issued comprehensive guidance on SIP
revisions in the ``General Preamble for the Implementation of Title I
of the Clean Air Act Amendments of 1990'' (``General Preamble'').\3\
Among other things, the General Preamble addressed SO2 SIP
submissions and fundamental principles for SIP control strategies.\4\
On April 23, 2014, the EPA issued guidance for meeting the statutory
requirements in SO2 SIP submissions in a document titled,
``Guidance for 1-Hour SO2 Nonattainment Area SIP
Submissions'' (``2014 SO2 Guidance'').\5\ In the 2014
SO2 Guidance, the EPA described the statutory requirements
for a complete nonattainment plan, which include: An accurate emissions
inventory of current emissions for all sources of SO2 within
the NAA; an attainment demonstration; a demonstration of RFP;
implementation of RACM (including RACT); new source review; enforceable
emissions limitations and control measures; conformity; and adequate
contingency measures for the affected area.
---------------------------------------------------------------------------

    \3\ 57 FR 13498 (April 16, 1992).
    \4\ Id. at 13545-13549, 13567-13568.
    \5\ EPA, Guidance for 1-Hour SO2 Nonattainment Area
SIP Submissions, April 23, 2014, available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf.
---------------------------------------------------------------------------

    For the EPA to fully approve a SIP revision as meeting the
requirements of CAA sections 110, 172, 191, and 192, and the EPA's
regulations at 40 CFR part 51, the plan for the affected area needs to
demonstrate that each of the aforementioned requirements has been met.
Under CAA section 110(l), the EPA may not approve a plan that would
interfere with any applicable requirement concerning NAAQS attainment
and RFP, or any other applicable requirement. Under CAA section 193, 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 that is a NAA for any air pollutant may be modified in any
manner unless it ensures equivalent or greater emission reductions of
such air pollutant.
    The EPA published a notice on March 18, 2016, finding that Arizona
and other states had failed to submit the required SO2
nonattainment plans for the Hayden SO2 NAA and several other
areas by the submittal deadline.\6\ This finding, which became
effective on April 18, 2016, initiated a deadline under CAA section
179(a) for the potential imposition of new source review offset and
highway funding sanctions. Additionally, under CAA section 110(c),

the finding triggered a requirement that the EPA promulgate a federal
implementation plan within two years of the effective date of the
finding unless the State has submitted, and the EPA has approved, the
nonattainment plan as meeting applicable requirements.
---------------------------------------------------------------------------

    \6\ 81 FR 14736 (March 18, 2016).
---------------------------------------------------------------------------

    In response to the EPA's finding, the Arizona Department of
Environmental Quality (ADEQ) submitted the Hayden SO2 Plan
on March 9, 2017, and submitted associated final rules on April 6,
2017.\7\ The EPA issued letters dated July 17, 2017, and September 26,
2017, finding the submittals complete and halting the sanctions clock
under CAA section 179(a).\8\
---------------------------------------------------------------------------

    \7\ Letters dated March 8, 2017, and April 6, 2017, from Tim
Franquist, Director, Air Quality Division, ADEQ, to Alexis Strauss,
Acting Regional Administrator, EPA Region IX. Although the cover
letter for the Hayden SO2 Plan was dated March 8, 2017,
the Plan was transmitted to the EPA on March 9, 2017.
    \8\ Letters dated July 17, 2017, and September 26, 2017, from
Elizabeth Adams, Acting Air Division Director, EPA Region IX, to Tim
Franquist, Director, Air Quality Division, ADEQ.
---------------------------------------------------------------------------

II. Public Comments and EPA Responses

    The EPA proposed to partially approve and partially disapprove the
Hayden SO2 Plan on May 22, 2020.\9\ Our proposed action
contains more information on the basis for this rulemaking and on our
evaluation of the submittal. In a separate, concurrent action, we also
proposed a limited approval and limited disapproval of Arizona
Administrative Code, Title 18, Chapter 2, Article 13, Section R18-2-
B1302 (``Rule B1302'').\10\
---------------------------------------------------------------------------

    \9\ 85 FR 31118.
    \10\ 85 FR 31113 (May 22, 2020).
---------------------------------------------------------------------------

    The EPA's proposed action for the Hayden SO2 Plan
provided a 30-day public comment period. During this period, we
received comments from Freeport-McMoRan Incorporated (FMI) and ASARCO
LLC (``Asarco'').11 12 We also received comments from ADEQ,
submitted to the docket for our related proposal on Rule B1302, that
are relevant to our proposed action on the Hayden SO2
Plan.\13\ All comments received on both proposals, including the
comments from ADEQ, are included in the docket for this action. The
comments from FMI pertain to Rule B1302 and are addressed in our final
action on the rule. Copies of these responses are also included in the
docket for this action.\14\ The comments from ADEQ and from Asarco,
along with our responses, are summarized below.
---------------------------------------------------------------------------

    \11\ Letter dated June 22, 2020, from Todd Weaver, Senior
Counsel, Freeport-McMoRan, to Rulemaking Docket EPA-R09-2020-0109,
Subject: ``Re: Comments on Partial Approval and Partial Disapproval
of Air Quality Implementation Plans; Arizona Nonattainment Plan for
the Hayden SO2 Nonattainment Area (EPA-R09-OAR-2020-0109)
and Limited Approval, Limited Disapproval of Arizona Plan Revisions,
Hayden Area; Sulfur Dioxide Control Measures--Copper Smelters (EPA-
R09-OAR-2020-0173).''
    \12\ Letter dated June 22, 2020, from Amy Veek, Environmental
Manager, Asarco Hayden Operations, ASARCO LLC, to Ashley Graham, Air
Planning Office, Air Division, EPA Region 9, Subject: ``Re: Comments
of ASARCO LLC on (1) ``Partial Approval and Partial Disapproval of
Air Quality Implementation Plans; Arizona; Nonattainment Plan for
the Hayden SO2 Nonattainment Area, 85 FR 31118 (May 22,
2020), Docket No. EPA-R09-OAR-2020-0109. (2) ``Limited Approval,
Limited Disapproval of Arizona Air Plan Revisions, Hayden Area;
Sulfur Dioxide Control Measures--Copper Smelters, 85 FR 31113 (May
22, 2020), Docket No. EPA-R09-OAR-2020-0173.''
    \13\ Letter dated June 18, 2020, from Daniel Czecholinski, Air
Quality Division Director, ADEQ, to Rulemaking Docket EPA-HQ-OAR-
2020-0109, Subject: ``Partial Approval Partial Disapproval of Air
Quality Implementation Plans; Arizona; Nonattainment Plan for the
Hayden SO2 Nonattainment Area, Docket ID Number: EPA-HQ-
OAR-2020-0109.'' ADEQ's comment letter mistakenly references
Rulemaking Docket ``EPA-HQ-OAR-2020-0109'' instead of the rulemaking
docket for this action, ``EPA-R09-OAR-2020-0109,'' and was submitted
to the rulemaking docket for our related proposal on Rule B1302,
``EPA-R09-OAR-2020-0173.''
    \14\ Response to Comments Document for the EPA's Final Actions
on the ``Arizona State Implementation Plan Revision: Hayden Sulfur
Dioxide Nonattainment Area for the 2010 SO2 NAAQS'' and
Rule R18-2-B1302, ``Limits on SO2 Emissions from the
Hayden Smelter'' (September 2020).
---------------------------------------------------------------------------

A. Comments From ADEQ

    Comment: ADEQ's comment letter expresses concern that the EPA's
proposed action does not clearly acknowledge the work that ADEQ and
Asarco have completed since identifying the modeling error that was
part of the basis for the EPA's proposed disapproval of the modeled
attainment demonstration and related elements. ADEQ describes the
modeling error that was discovered in 2017 after the SIP revision was
submitted to the EPA and discusses the extensive work that was
conducted to develop a revised modeling methodology. These efforts
include additional analyses, work to justify new assumptions and
modeling parameters, and the development of new modeling files and a
modeling technical support document (TSD), draft versions of which were
shared with EPA staff for review. ADEQ does not dispute the modeling
error and acknowledges that the EPA was required to take action on the
SIP revision submitted in March 2017. However, ADEQ expresses concern
that the language in the EPA's proposal could lead the reader to
believe that it knowingly submitted a SIP revision containing a flawed
attainment demonstration, that the error was a recent discovery, or
that it has taken no action to resolve the modeling issue. ADEQ
contends that a clarification regarding the additional modeling efforts
would help avoid any misunderstanding. Finally, ADEQ asserts that the
new modeling methodology shows attainment of the NAAQS and that it was
approved by the EPA in 2018.
    Response: We agree that extensive work has been done by ADEQ and
Asarco, in consultation with EPA staff, to correct the flawed modeling
in the March 2017 submittal. While we noted in our proposal that ADEQ
has been working with Asarco and the EPA on revised modeling, we
acknowledge that the high level of effort that has gone into that work
was not clearly presented in our proposed action and the sequence of
ADEQ submitting the SIP revision in March 2017, identifying the error
later in 2017, and subsequently working extensively with Asarco and the
EPA to correct the error was not discussed.
    In response to the statement that the new methodology was approved
by the EPA in 2018, we would like to clarify that, while ADEQ and
Asarco consulted with EPA staff to revise the modeling, and has shared
new modeling files and a modeling TSD with EPA staff, these documents
have not undergone ADEQ public notice and comment or been formally
submitted to the EPA as a SIP revision. Therefore, the revised modeling
has not been formally approved by the EPA and was not evaluated as part
of our proposed action. Only upon such future submission, if it occurs,
will the EPA be able to formally evaluate and make a determination
regarding its adequacy to demonstrate attainment of the 2010
SO2 NAAQS.

B. Comments From Asarco

    Comment: Asarco notes that it has spent considerable time and
resources since 2011, in collaboration with ADEQ and the EPA, to
achieve attainment of the 2010 SO2 NAAQS in the Hayden NAA.
The commenter states that Asarco's efforts, including improvements to
the capture and control systems, retrofits and rebalancing of the
converter aisle to enhance sulfur recovery at the acid plant, and
installation of an improved preheater system to reduce startup
emissions, have resulted in SO2 emission reductions of
approximately 90 percent relative to pre-2010 levels.
    Response: The EPA acknowledges the efforts that Asarco has
undertaken to reduce SO2 emissions and improve air quality
in the Hayden SO2 NAA. A

summary of the equipment and process upgrades that have been
implemented was included in our proposed action,\15\ and a more
detailed discussion was included in the TSD accompanying our proposed
action on Rule B1302.\16\
---------------------------------------------------------------------------

    \15\ 85 FR 31118, 31122.
    \16\ EPA, ``Technical Support Document for the EPA's Rulemaking
for the Arizona State Implementation Plan; Arizona Administrative
Code, Title 18, Chapter 2, Article 13, Part B--Hayden, Arizona,
Planning Area, R18-2-B1302--Limits on SO2 Emissions from
the Hayden Smelter,'' April 2020 (``Rule B1302 TSD'').
---------------------------------------------------------------------------

    Comment: Asarco asserts that the statement in the EPA's proposal
that an error in ADEQ's modeling ``changed predicted SO2
concentrations such that the modeling no longer shows attainment of the
2010 SO2 NAAQS'' \17\ is disingenuous because ADEQ's revised
modeling demonstration shows attainment of the 2010 SO2
NAAQS. Asarco believes that the accompanying footnote \18\ in the
proposed action suggests that the modeling error was discovered in
2020, rather than in 2017, and suggests that the EPA should have
acknowledged that ADEQ's revised modeling shows attainment even if the
EPA felt compelled to act only on the submitted version of the plan.
---------------------------------------------------------------------------

    \17\ 85 FR 31118, 31120.
    \18\ Id. at footnote 16.
---------------------------------------------------------------------------

    Response: As discussed in our response to ADEQ's comments in
Section II.A of this notice, the EPA does not dispute that the modeling
error was discovered in 2017. We referenced the 2020 email \19\ in our
proposed action because we did not have contemporaneous documentation
of the discovery of the modeling error to cite in our proposal. We did
not intend for our proposal to suggest that the modeling error was
identified in 2020 and acknowledge the extensive work that has been
done by ADEQ and Asarco to revise the modeling in the March 2017 SIP
revision.
---------------------------------------------------------------------------

    \19\ Email dated March 25, 2020, from Farah Esmaeili, ADEQ, to
Rynda Kay, EPA Region IX.
---------------------------------------------------------------------------

    We also note that ADEQ and Asarco have informally sent draft
revised modeling to EPA staff, who have provided feedback on the draft
revised modeling. However, as previously noted, ADEQ has not yet
released the revised modeling for public notice and comment or formally
submitted the modeling to the EPA as a SIP revision. Accordingly, the
EPA has not yet reviewed the revised modeling for approvability under
the applicable requirements of the CAA and EPA regulations.
    Comment: Asarco asserts that under CAA section 172(c)(6), ``other
control measures, means or techniques'' may be sufficient to achieve
and demonstrate attainment of the NAAQS, and therefore, it does not
agree that the Hayden SO2 Plan cannot be approved without
numeric fugitive emissions limits. Asarco contends that the EPA
improperly relied upon selective citation of the CAA and EPA
regulations and non-binding guidance to conclude that a numeric
fugitive emissions limit is required. Asarco lists the ``other control
measures, means or techniques'' provided for in the Hayden
SO2 Plan, which it asserts are sufficient ``to achieve and
demonstrate attainment of the 2010 SO2 NAAQS,'' including
new and upgraded capture and control equipment, operation and
maintenance plans for process and control equipment, numeric emissions
limits on the main stack, a new preheater system to reduce startup
emissions, work practice controls for fugitive emissions, and fugitive
emissions studies to evaluate the efficacy of the improved gas capture
and control equipment.
    Response: We disagree with this comment. Section 172(c)(6) of the
CAA requires attainment plans to include ``enforceable emission
limitations, and such other control measures, means or techniques'' as
necessary or appropriate to provide for attainment. The guidance
documents we cited in our proposal (i.e., the General Preamble and the
2014 SO2 Guidance) describe and interpret CAA section
172(c)(6) and other binding statutory and regulatory requirements.
While the guidance documents are not themselves binding, they guide the
EPA's review of SIP submittals for compliance with the relevant
requirements. In any case, the text of section 172(c)(6) is clear that
the EPA must determine whether a submitted SIP includes all enforceable
emission limitations and other measures that are necessary to provide
for attainment. While measures other than emission limits might be
sufficient by themselves in some circumstances (for example, where a
particular source contributes little to the attainment problem or is
not susceptible to a numeric limit due to technological limitations),
such circumstances do not exist in this case, given that fugitive
SO2 emissions at the Hayden facility have the potential to
cause or contribute to NAAQS violations and are capable of being
continuously monitored.\20\
---------------------------------------------------------------------------

    \20\ Letter dated April 29, 2019, from Elizabeth Adams, Air
Division Director, EPA Region IX, to Timothy Franquist, Air
Director, ADEQ, Subject: ``Re: Comments on draft letter regarding
R18-2-B1302'' (``April 2019 Comment Letter'').
---------------------------------------------------------------------------

    The measures listed in Asarco's comment, while important components
of the control strategy, do not ensure that fugitive emissions will
remain at the level that was assumed in the attainment modeling. In
particular, the installation of new and improved capture and control
equipment was expected to reduce fugitive emissions, but, in the
absence of ongoing monitoring, it is not known whether these changes
were sufficient to reduce emissions to the level necessary to achieve
attainment. Similarly, operation and maintenance requirements and work
practice controls are helpful for ensuring that process and control
equipment are properly operated, but they do not correspond to or
assure achievement of any particular level of emissions.
    The fugitive emissions studies, the first of which began last year,
will provide better information regarding the actual level of fugitive
emissions from the facility. However, these studies will last for only
one year each and do not correspond to any numeric emission limit.
Therefore, if one of the studies were to show that fugitive emissions
exceeded the levels assumed in the attainment modeling, this would not
constitute a violation of an emissions limit that could give rise to an
enforcement action. Rather, it would simply trigger a requirement for
Asarco to conduct new modeling to assess whether the NAAQS would still
be attained at the higher emissions levels.\21\ If that modeling shows
an increased likelihood of a NAAQS exceedance, then Asarco would have
to submit to ADEQ a proposed revision to its operations and maintenance
plan and associated modeling to demonstrate attainment of the NAAQS.
ADEQ would then submit revisions to the operational limits and
volumetric flow monitoring provisions, and a revised attainment
demonstration to the EPA as a SIP revision.
---------------------------------------------------------------------------

    \21\ See Arizona Administrative Code R18-2-C1302 Appendix 14
paragraphs A.14.8 and 9.
---------------------------------------------------------------------------

    There is substantial risk that fugitive emissions from the facility
could cause or contribute to violations of the 2010 SO2
NAAQS. Consequently, the Plan must assure that these emissions are
limited in an enforceable manner. A process for future evaluation of
fugitive emissions and potential future SIP revisions contingent on the
results of that evaluation cannot substitute for enforceable
limitations on fugitive emissions. Moreover, if fugitive emissions were
to increase during the period between the two studies or after the
second study, there would be no mechanism to address those increased
emissions. In contrast, if the Plan were to rely on enforceable numeric
fugitive emissions limits corresponding to the

modeled fugitive emissions levels, with ongoing monitoring,
recordkeeping and reporting requirements, then an exceedance of any of
these emissions levels would be a violation of the SIP that could
result in an immediate enforcement action by ADEQ, the EPA, or a third
party. Such an approach would satisfy the requirement of CAA section
172(c)(6) for enforceable limits and other measures that provide for
attainment of the 2010 SO2 NAAQS.
    Finally, Asarco lists the stack emission limits among the control
measures that it believes are sufficient to demonstrate attainment. As
discussed in our proposal, the stack emission limits would be
enforceable were it not for the flaws in monitoring, recordkeeping and
reporting requirements. In any case, the stack limits have no bearing
on the SIP's flaw in not imposing an enforceable limit for fugitive
SO2 emissions.
    For the foregoing reasons, we conclude that the requirements for
enforceable limits and other measures that provide for attainment of
the SO2 NAAQS under CAA section 172(c)(6) have not been
satisfied.
    Comment: Asarco reiterates its view that the EPA's proposal is
dismissive of the progress that Asarco has made in reducing total
SO2 emissions at the Hayden smelter, and that it implies
that fugitive emissions controls at the smelter are inadequate. Asarco
cites emissions reductions observed based on the initial data collected
during the first fugitive emissions study to assert that fugitive
emissions are well below what is needed to ensure attainment of the
2010 SO2 NAAQS.
    Response: The EPA acknowledges the progress that has been made to
reduce SO2 emissions at the Hayden smelter. As discussed in
Asarco's comments and in the TSD accompanying our proposed action on
Rule B1302, Asarco's SO2 control strategy includes several
equipment and process upgrades, including replacement of the
electrostatic precipitator and flash furnace with a new vent gas
baghouse system; replacement of five 13-foot diameter converters with
new 15-foot diameter units that operate more efficiently; installation
of extended secondary and tertiary hooding in the converter aisle to
maximize ventilation gas capture during charging, transfer, and tapping
operations; and improvements to the acid plant with an upgraded pre-
heater system.\22\ ADEQ has estimated that the converter retrofit
project would reduce SO2 emissions from the smelter by 90
percent between 2011 and 2019.
---------------------------------------------------------------------------

    \22\ Rule B1302 TSD, 5.
---------------------------------------------------------------------------

    With regards to the adequacy of the fugitive emissions controls,
the EPA disagrees that there are sufficient data to conclude that
fugitive emissions are below the level needed to ensure attainment.
Asarco references emissions reductions based on initial data collected
during the first fugitive emissions study, stating that ``[u]nder the
Plan, fugitive emissions fall from a maximum annual average of 295
pounds/hour to an average range between 4.3 and 39.8 pounds/hour.''
However, Asarco has not provided the hourly emissions data from
specific roofline sources over an extended period that would be
necessary to assess whether the recently monitored levels of fugitive
emissions have been consistently at or below the levels necessary for
attainment. Moreover, even if recent fugitive emissions have been below
the modeled level, there is no assurance that these levels will be
maintained over the long-term because, as described in the previous
response, the Plan and Rule B1302 do not include any ongoing
requirements to measure fugitive emissions or assure that these
emissions remain low.
    Comment: Regarding the EPA's position that Rule B1302 subsection
(E)(4) ``provides an option for alternative sampling points that could
undermine the enforceability of the stack emission limit by providing
undue flexibility to change sampling points without undergoing a SIP
revision,'' \23\ the commenter states that the EPA's concern is not
justified and lacks merit because the provision requires Asarco to
demonstrate to ADEQ's satisfaction that the measurement ``would yield
inaccurate results or would be technologically infeasible'' prior to
using an alternative sampling point. Asarco asserts that it would be
indefensible for the EPA to require inaccurate results be used to
demonstrate attainment. Lastly, Asarco notes that it has recommended
that ADEQ withdraw subsection (E)(4) because Asarco and ADEQ have
agreed that the monitoring points are yielding acceptable results so
this issue should be resolved upon ADEQ's submittal of a revised plan.
---------------------------------------------------------------------------

    \23\ 85 FR 31118, 31120.
---------------------------------------------------------------------------

    Response: The EPA disagrees that this issue lacks merit. The EPA is
not suggesting that inaccurate sampling points be required to be used
to demonstrate attainment, but rather that any change to sampling
points should be the subject of EPA and public review through a SIP
revision. As noted in our proposal, one of four basic principles that
apply to all SIPs and control strategies is replicability, which means
that ``where a rule contains procedures for changing the rule,
interpreting the rule, or determining compliance with the rule, the
procedures are sufficiently specific and non-subjective such that two
independent entities applying the procedures would obtain the same
result.'' \24\ We find that the language in Rule B1302 subsection
(E)(4) allowing for ``measurement of the flow rate at an alternative
sampling point'' where the measurement in the outlet of the control
equipment ``would yield inaccurate results or would be technologically
infeasible'' is too general and subjective to ensure that two
independent entities applying this standard would reach the same
conclusion. For example, ADEQ might find that measurement of stack gas
volumetric flow rate in the outlet of a particular piece of
SO2 control equipment is technologically infeasible in a
situation where the EPA might conclude that such measurement is
feasible. Moreover, the rule does not specify any procedures or
criteria for determining whether measurement at the alternative
sampling point would yield accurate and representative results.
Therefore, this provision of the rule is inconsistent with the
principle of replicability.
---------------------------------------------------------------------------

    \24\ General Preamble, 13568.
---------------------------------------------------------------------------

    As stated in the April 2019 Comment Letter conveying the EPA's
comments to ADEQ regarding Rule B1302, the EPA agrees that withdrawal
of subsection (E)(4) is appropriate and will resolve this issue, if
such withdrawal occurs.
    Comment: Asarco objects to the EPA's position that Rule B1302
subsection (E)(6) ``allows for nearly 10 percent of total facility
SO2 emissions annually to be exempt from continuous
emissions monitoring systems; this deficiency could compromise the
enforceability of the main stack emission limit.'' \25\ The commenter
asserts that there is no deficiency and the basis for disapproval lacks
merit because the provision to allow Asarco to petition ADEQ to replace
the continuous emissions monitoring system (CEMS) with annual stack
testing and report emissions rates as a pounds per hour (lb/hr) or
pounds per ton production factor would still allow calculation of the
emissions rates. Asarco states that there were legitimate concerns that
it would not be able to perform a relative accuracy test audit (RATA)
of the CEMS due to the low concentrations of SO2 present,
but that it has now determined that it can perform a RATA of the
relevant CEMS

and has requested that ADEQ withdraw subsection (E)(6) in ADEQ's
submittal of a revised plan to resolve this issue.
---------------------------------------------------------------------------

    \25\ 85 FR 31118, 31120.
---------------------------------------------------------------------------

    Response: The EPA disagrees that this issue lacks merit. While the
rule language does provide for an emissions value that can allow for
the calculation of an overall stack emissions rate, we do not consider
this sufficient to ensure the enforceability of the one-hour main stack
emissions limit given the large variability in hourly emissions from
the Asarco facility. The commenter asserts that units encompassed by
the provision typically emit less than 75 lb/hr SO2;
however, we note that Asarco's emissions estimate for these units
forecasts a maximum emission rate as high as 417 lb/hr SO2
(out of a total 1,069.1 lb/hr or 1,518 lb/hr main stack limit).\26\ In
addition, we note that source test results represent a ``snapshot'' of
unit emissions (and of corresponding unit operations) at the time of
the source test. Generally, source tests must be performed at
approximately 80 to 100 percent of maximum operating levels, and
emissions limits relying upon a source test for demonstrating
compliance typically require continuous monitoring of one or more
parameters of unit operation. This allows for the determination that
unit operations are representative of source test conditions and
ensures the validity of the source test result. Rule B1302 subsection
(E)(6), however, relies solely on source test results for demonstrating
compliance, which we do not consider sufficient to ensure
enforceability of the main stack emissions limit. As stated in our
April 2019 Comment Letter, the EPA agrees that withdrawal of subsection
(E)(6) is appropriate and will resolve this issue, if such withdrawal
occurs.
---------------------------------------------------------------------------

    \26\ See B-1j_Forecast_Emissions_20160927.xlsx in the rulemaking
docket for this action.
---------------------------------------------------------------------------

    Comment: Asarco objects to the EPA's position that Rule B1302
``lacks a method for measuring or calculating emissions from a shutdown
ventilation flue; this omission could compromise the enforceability of
the main stack emission limit.'' \27\ Asarco asserts that the concern
is unfounded and lacks merit. Asarco explains the purpose of the
shutdown ventilation flue and describes the procedure for calculating
emissions for planned and unplanned shutdowns. Asarco notes that the
procedure and resulting values are included in the SIP documentation
but that to resolve the issue, it has requested that ADEQ revise the
operation and maintenance plan requirements in the SIP to document the
SO2 emitted during planned and unplanned use of the shutdown
ventilation flue and require the use of the operation and maintenance
plan value in compliance calculations.
---------------------------------------------------------------------------

    \27\ 85 FR 31118, 31120.
---------------------------------------------------------------------------

    Response: The EPA disagrees that the concern is unfounded and lacks
merit. While the procedure for calculating emissions for planned and
unplanned shutdowns and the value are included in supporting
documentation for the Plan, they are not included in Rule B1302 or
elsewhere in the SIP; therefore, they are not currently enforceable.
    Comment: Regarding the EPA's position that Rule B1302 ``lacks a
method for calculating hourly SO2 emissions,'' \28\ Asarco
asserts that the calculation method is presented in subsections (F)(1)
and (F)(2) and acknowledges that there was a typographical omission of
the ``valid hour'' definition that was included in Arizona's
submission. Asarco notes that it has submitted to ADEQ the same
definition included in the EPA-approved plan for the 2010
SO2 NAAQS for the Miami, Arizona area and that Asarco has
requested that ADEQ include it in a revised submittal to resolve the
issue.
---------------------------------------------------------------------------

    \28\ Id.
---------------------------------------------------------------------------

    Response: The omission of the ``valid hour'' definition leads to
ambiguity in how hourly emissions are calculated, thus undermining
enforceability. However, the EPA agrees that inclusion of a ``valid
hour'' definition will clarify the method for calculating hourly
SO2 emissions for the Hayden facility and will resolve this
issue, if submitted to the EPA in a future SIP revision.
    Comment: The commenter states that Asarco is disappointed that the
EPA has not evaluated a fundamental part of the Hayden SO2
control strategy--i.e., the ``dual limit.'' Asarco discusses its
rationale for the dual limit, states that there is no basis for the EPA
to question it, and states that it is presumptively approvable under
the EPA's SO2 Guidance.
    Response: As noted in our proposal on Rule B1302, we are approving
the main stack emission limit because it is more stringent than the
existing requirements in state law, as well as new operational
standards and monitoring, recordkeeping, and reporting requirements for
the smelter.\29\ However, as noted in our proposed action on the Hayden
SO2 Plan, we are not evaluating its adequacy to ensure
attainment of the 2010 SO2 NAAQS because (1) ADEQ has not
demonstrated that the emission limits in Rule B1302 are sufficient to
provide for attainment, and (2) the stack emission limit is not fully
enforceable due to various deficiencies in Rule B1302.\30\
---------------------------------------------------------------------------

    \29\ 85 FR 31113, 31115.
    \30\ 85 FR 31118, 31120.
---------------------------------------------------------------------------

    Comment: Asarco states that it disagrees with the EPA's conclusion
that the modeling in the Hayden SO2 Plan is flawed. It notes
that the revised modeling that was informally submitted to EPA staff
indicates that the Converter Retrofit Project meets the RACM/RACT
requirements and that Asarco's understands that the revised modeling
will be submitted to the EPA as a SIP revision.
    Response: As discussed above, the EPA has not reviewed the revised
modeling because, as Asarco acknowledges, it has not been formally
submitted to the EPA as a SIP revision. The EPA's proposal to
disapprove the RACM/RACT demonstration is based on the modeling that
was submitted as part of the March 2017 SIP submittal. Both ADEQ and
Asarco acknowledge the error in the modeling in the March 2017
submittal. The EPA will review any revised modeling upon formal
submission of such modeling to the EPA as a SIP revision.
    Comment: Asarco states that ADEQ intends to submit a SIP revision
that includes updated modeling that shows attainment; removal of Rule
B1302, Section (E)(4); removal of Rule B1302, Section (E)(6); a
provision in the operation and maintenance plan to demonstrate the
quantity of SO2 present during planned and unplanned use of
the shutdown ventilation flue; and a ``valid hour'' definition that is
the same as the definition in the approved Miami SO2 SIP.
Asarco reiterates its position that the CAA does not require the Hayden
SO2 SIP to include numeric fugitive emissions limits but
notes that it is working with ADEQ to establish workable emissions
limits and monitoring provisions for demonstrating compliance with such
limits. Asarco also states that the submission of the SIP revision is
imminent and recommends that the EPA prioritize action on the pending
revised submittal rather than development of a new plan.
    Response: As discussed above, the EPA disagrees with the
commenter's assertion that the CAA does not require enforceable
emissions limitations for fugitive emissions. Section 172(c)(6) of the
Act requires attainment plans to include ``enforceable emission
limitations, and such other control measures, means or techniques'' as
necessary and appropriate to provide for attainment. With regards to
the SIP revision that ADEQ and Asarco have been working on, the EPA
will review

the submittal for approvability under the applicable requirements of
the CAA and EPA regulations once it has undergone ADEQ public notice
and comment and been formally submitted to the EPA. While the EPA looks
forward to reviewing the prospective submittal, the EPA must also
fulfill its obligation under section 110(k) of the CAA to act on ADEQ's
2017 submittal.

III. The EPA's Final Action

    For the reasons discussed in our proposed action and above, the EPA
is finalizing our partial approval and partial disapproval of the
Hayden SO2 Plan. The EPA is approving the emissions
inventory element under CAA section 172(c)(3) and (4) and affirming
that the State has met the new source review requirements for the
Hayden SO2 NAA under section 172(c)(5). We are disapproving
the attainment demonstration, RACM/RACT, enforceable emission
limitations, RFP, and contingency measure elements because they do not
meet the requirements of the CAA for the 2010 SO2 NAAQS. As
a result of this final partial disapproval, the offset sanction in CAA
section 179(b)(2) will be imposed 18 months after the effective date
this action, and the highway funding sanction in CAA section 179(b)(1)
six months after the offset sanction is imposed. A sanction will not be
imposed if the EPA determines that a subsequent SIP submission corrects
the identified deficiencies before the applicable deadline.

IV. Statutory and Executive Order Reviews

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

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action
because SIP approvals, including limited approvals, are exempted under
Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.

F. Executive Order 13132: Federalism

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

G. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction, and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.

I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

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

J. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.

L. Congressional Review Act (CRA)

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

M. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 11, 2021. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see CAA section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxide,
Volatile organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: October 10, 2020.
John Busterud,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for Part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart D--Arizona

0
2. In 52.120(e), amend Table 1 under the heading ``Part D Elements and
Plans (Other than for the Metropolitan Phoenix and Tucson Areas)'' by
adding an entry for ``Arizona State Implementation Plan Revision:
Hayden Sulfur Dioxide Nonattainment Area for the 2010 SO2
NAAQS'' after the entry for ``SIP Revision: Hayden Lead Nonattainment
Area, excluding Appendix C.''

Sec.  52.120  Identification of plan.

* * * * *
    (e) * * *

                       Table 1--EPA-Approved Non-Regulatory and Quasi-Regulatory Measures
       [Excluding certain resolutions and statutes, which are listed in tables 2 and 3, respectively] \1\
----------------------------------------------------------------------------------------------------------------
                                     Applicable
                                   geographic or
     Name of SIP provision         nonattainment     State submittal   EPA approval date        Explanation
                                   area or title/          date
                                      subject
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
               Part D Elements and Plans (other than for the Metropolitan Phoenix or Tucson Areas)
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Arizona State Implementation     Hayden, AZ Sulfur  March 9, 2017....  [INSERT FEDERAL    Adopted by the Arizona
 Plan Revision: Hayden Sulfur     Dioxide                               REGISTER           Department of
 Dioxide Nonattainment Area for   Nonattainment                         CITATION],         Environmental Quality
 the 2010 SO2 NAAQS. Chapter 3,   Area.                                 November 10,       and submitted to the
 Chapter 8, Appendix A, and                                             2020.              EPA as an attachment
 Appendix B.                                                                               to letter dated March
                                                                                8, 2017. The EPA
                                                                                approved the
                                                                                emissions inventory
                                                                                element and affirmed
                                                                                that the State had
                                                                                met the new source
                                                                                review requirements
                                                                                for the area. The EPA
                                                                                disapproved the
                                                                                attainment
                                                                                demonstration, RACM/
                                                                                RACT, enforceable
                                                                                emission limitations,
                                                                                RFP, and contingency
                                                                                measure elements.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Table 1 is divided into three parts: Clean Air Act Section 110(a)(2) State Implementation Plan Elements
  (excluding Part D Elements and Plans), Part D Elements and Plans (other than for the Metropolitan Phoenix or
  Tucson Areas), and Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas.

* * * * *

0
3. Section 52.124 is amended by revising paragraph (c) to read as
follows:

Sec.  52.124  Part D disapproval.

* * * * *
    (c) The following portions of the ``Arizona State Implementation
Plan Revision: Hayden Sulfur Dioxide Nonattainment Area for the 2010
SO2 NAAQS'' are disapproved because they do not meet the
requirements of Part D of the Clean Air Act:
    (1) Attainment demonstration,
    (2) Reasonably available control measures/reasonably available
control technology,
    (3) Enforceable emission limitations,
    (4) Reasonable further progress, and
    (5) Contingency measures.

[FR Doc. 2020-23030 Filed 11-9-20; 8:45 am]
BILLING CODE 6560-50-P