On May 20, 2019, OPM published notice 84 FR 22915 in the Federal Register to revise the normal cost percentages under the Federal Employees' Retirement System (FERS) Act of 1986, Public Law 99-335, 100 Stat. 514, as amended, based on economic assumptions and demographic factors adopted by the Board of Actuaries of the Civil Service Retirement System. By statute under 5 U.S.C. 8461(i), the revisions to the actuarial assumptions require corresponding changes in factors used to produce actuarially equivalent benefits when required by the FERS Act.

Section 843.309 of title 5, Code of Federal Regulations, regulates the payment of the basic employee death benefit. Under 5 U.S.C. 8442(b), the basic employee death benefit may be paid to a surviving spouse as a lump sum or as an equivalent benefit in 36 installments. These rules amend 5 CFR 843.309(b)(2) to conform the factor used to convert the lump sum to 36-installment payments with the revised economic assumptions.

Section 843.311 of title 5, Code of Federal Regulations, regulates the benefits for the survivors of separated employees under 5 U.S.C. 8442(c). This section provides a choice of benefits for eligible current and former spouses. If the current or former spouse is the person entitled to the unexpended balance under the order of precedence under 5 U.S.C. 8424, he or she may elect to receive the unexpended balance instead of an annuity.

Alternatively, an eligible current or former spouse may elect to receive an annuity commencing on the day after the employee's death or on the deceased separated employee's 62nd birthday. If the annuity commences on the deceased separated employee's 62nd birthday, the annuity will equal 50 percent of the annuity that the separated employee would have received had he or she attained age 62. If the current or former spouse elects an earlier commencing date, the annuity is reduced using the factors in Appendix A to subpart C of part 843 to make the annuity actuarially equivalent to the present value of the annuity that the spouse or former spouse would have received if the annuity had commenced on the deceased separated employee's 62nd birthday. These rules amend Appendix A to subpart C of part 843 to conform the factors to the revised actuarial assumptions.

OPM has examined the impact of this rule as required by Executive Order 12866 and Executive Order 13563, which directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule was not designated as a “significant regulatory action,” under Executive Order 12866.

This proposed rule is not expected to be a E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866.

The Office of Personnel Management certifies that this rule will not have a significant economic impact on a substantial number of small entities.

We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

This regulation meets the applicable standard set forth in Executive Order 12988.

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of nonagency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number.

This rule involves an OMB approved collection of information subject to the PRA Application for Death Benefits (FERS)/Documentation and Elections in Support of Application for Death Benefits when Deceased was an Employee at the Time of Death (FERS), 3206-0172. The public reporting burden for this collection is estimated to average 60 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The total burden hour estimate for this form is 16,751 hours. The systems of record notice for this collection is: OPM SORN CENTRAL-1-Civil Service Retirement and Insurance Records.

For the reasons stated in the preamble, the Office of Personnel Management proposes to amend 5 CFR part 843 as follows:

On March 22, 2019, we published in the Federal Register (84 FR 10721-10735, Docket No. APHIS-2017-0062) a proposal to amend the licensing requirements under the Animal Welfare Act regulations to promote compliance, reduce licensing fees, and strengthen existing safeguards that prevent individuals and businesses who have a history of noncompliance from obtaining a license or working with regulated animals.

Comments on the proposed rule were required to be received on or before May 21, 2019. We are reopening the comment period on Docket No. APHIS-2017-0062 for an additional 15 days, to June 5, 2019. This action will allow interested persons additional time to prepare and submit comments. We will also consider all comments received between May 21, 2019, and the date of this notice.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in the eastern United States to improve the efficiency of the NAS by lessening the dependency on ground-based navigation.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2019-0339; Airspace Docket No. 18-AEA-21 and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2019-0339; Airspace Docket No. 18-AEA-21.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

This document proposes to amend FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this proposed rule. FAA Order 7400.11C lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to establish seven new low altitude RNAV routes, designated T-303, T-307, T-320, T-324, T-335,T-356, and T-358, in the northeastern United States. The purpose of the routes is to expand the availability of RNAV and improve the efficiency of the NAS by reducing the dependency on ground-based navigation systems. The following is a general description of the proposed routes.

T-303: T-303 would extend between the IRAKE, NC, fix (22 NM northeast of the Kinston, NC (ISO), VORTAC), and the WHITE, NJ, fix (14 NM northeast of the Coyle, NJ, (CYN) VORTAC).

T-307: T-307 would extend between the PEARS, NC, fix (43 NM northeast of the New Bern, NC, (EWN) VOR/DME), and the SHERL, NY, fix (37 NM southeast of the Kennedy, NY, (JFK) VOR/DME).

T-320: T-320 would extend between the NUTTS, VA, fix (46 NM northeast of the South Boston, VA, (SBV) VORTAC) and the WHITE, NJ, fix (14 NM northeast of the Coyle, NJ, (CYN) VORTAC).

T-324: T-324 would extend between the COLIN, VA, fix (37 NM south of the Nottingham, MD, (OTT) VORTAC), and the ZIGGI, NJ, fix (37 NM southwest of the Kennedy, NY, (JFK) VOR/DME).

T-335: T-335 would extend between the CHEYF, MD, WP (near the Snow Hill, MD, (SWL) VORTAC), and the Pottstown, PA, (PTW) VORTAC.

T-356: T-356 would extend between the WOOLY, MD fix (38 NM east of the Martinsburg, WV, (MRB) VORTAC) eastward to the SWANN, MD, fix; then northeastward to the ELUDE, MD, fix (9 NM west of the Dupont, DE, (DQO) VORTAC).

T-358: T-358 would extend between the Martinsburg, WV, (MRB) VORTAC, and the AVALO, NJ, fix (10 NM south of the Atlantic City, NJ, (ACY) VORTAC).

The full route descriptions are listed in “The Proposed Amendment” section, below.

United States Area Navigation routes are published in paragraph 6011 of FAA Order 7400.2C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The RNAV routes listed in the document would be subsequently published in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The purpose of the U.S. countervailing duty law is to provide a remedy for U.S. workers and businesses injured by unfairly subsidized imports. It is based upon the recognition that certain government interventions in the market cause distortions to trade and confer unfair advantages on certain economic actors. The countervailing duty law therefore provides for the imposition of a countervailing duty on subsidized imports to offset the portion of the subsidy attributable to the imported goods. Commerce conducts an investigation to determine whether countervailable subsidies have been provided, and the U.S. International Trade Commission separately determines whether the domestic industry of the like product is injured (or threatened with injury) by reason of those imports. If both agencies reach affirmative determinations, Commerce will instruct U.S. Customs and Border Protection to apply countervailing duties on the subject imports.

A countervailing duty investigation is initiated when Commerce receives a petition filed on behalf of a U.S. industry that requests relief. Commerce can also self-initiate an investigation. An investigation covers a discrete “class or kind” of merchandise, such as off-the-road tires, or corrosion-resistant steel, or frozen shrimp. The investigation is a quasi-judicial proceeding, during which Commerce collects information from interested parties, assembles an administrative record, and receives arguments from interested parties. Commerce then makes its findings based upon the administrative record and parties' arguments. If the investigation results in affirmative findings, and countervailing duties are imposed, there can be annual reviews of the duties to establish the precise amount of duties each year.

The Tariff Act of 1930, as amended (19 U.S.C. 1671, et seq. ) (the Act), governs countervailing duty proceedings. It also defines a “subsidy.” Specifically, section 701 of the Act provides that when the government of a country or any public entity within the territory of a country is providing, directly or indirectly, a countervailable subsidy with respect to the manufacture, production, or export of a class or kind of merchandise that is imported into the United States, and material injury or threat of material injury is found by the International Trade Commission, Commerce shall impose a countervailing duty. Section 771(5)(B) of the Act defines a subsidy as existing when: A government or any public entity within the territory of a country provides a financial contribution; provides any form of income or price support; or makes a payment to a funding mechanism to provide a financial contribution, or entrusts or directs a private entity to make a financial contribution, if providing the contribution would normally be vested in the government and the practice does not differ in substance from practices normally followed by governments; and a benefit is thereby conferred. To be countervailable, a subsidy must be specific within the meaning of section 771(5A) of the Act.

There are four types of government financial contributions described in section 771(5)(D) of the Act: (1) A direct transfer of funds or potential direct transfer of funds; (2) foregoing or not collecting revenue that is otherwise due; (3) providing goods or services, other than general infrastructure; and (4) purchasing goods.

Section 771(5)(E) of the Act sets forth certain methods for determining the existence of a benefit for several different types of financial contributions. However, section 771(5)(E) of the Act is not exhaustive; it does not provide the method for determining the existence of a benefit for every type of financial contribution. Commerce's regulations provide further rules for determining the existence of a benefit. In particular, 19 CFR 351.503 sets forth some general principles, while 19 CFR 351.504 through 351.520 provide more specific guidelines for calculating the benefit from certain types of financial contributions.

Section 771(5A) of the Act addresses specificity of subsidies. Section 771(5A)(A) of the Act states that a subsidy is specific if it is an export subsidy described in section 771(5A)(B) or an import substitution subsidy described in section 771(5A)(C), or is determined to be specific pursuant to section 771(5A)(D). Section 771(5A)(D)(i) of the Act states that a subsidy is specific as a matter of law if the authority providing the subsidy, or the legislation pursuant to which the authority operates, expressly limits access to the subsidy to an enterprise or industry.

Even if a subsidy is not specific as a matter of law, it could be specific as a matter of fact. Section 771(5A)(D)(iii) of the Act describes four situations in which a subsidy is specific as a matter of fact: (1) The actual recipients of the subsidy, whether considered on an enterprise or industry basis, are limited in number; (2) an enterprise or industry is a predominant user of the subsidy; (3) an enterprise or industry receives a disproportionately large amount of the subsidy; or (4) the manner in which the authority providing the subsidy has exercised discretion in the decision to grant the subsidy indicates that an enterprise or industry is favored over others. Section 771(5A)(D)(iv) of the Act states that a subsidy is specific when it is limited to an enterprise or industry located within a designated geographical region within the jurisdiction of the authority providing the subsidy. Section 771(5A) of the Act makes clear that the term “enterprise or industry” includes a group of enterprises or industries. Commerce's regulation at 19 CFR 351.502 sets forth more rules for determining specificity.

Neither the Act nor Commerce's regulations specify how to determine the existence of a benefit or specificity when Commerce is examining a potential subsidy resulting from the exchange of currency. The proposed modifications to Commerce's regulations, described below, would address this issue. 1

Specifically, the modifications described below propose one way to analyze whether the exchange of an undervalued currency results in a countervailable subsidy. They are developed with the recognition that while Commerce is, by statute, the administering authority of the countervailing duty law, the issue of currency undervaluation is complex and unlike many of the subsidies we have examined in the past. As described below, during any countervailing duty proceeding involving a potential subsidy in the form of currency undervaluation, we intend to seek and to defer to the Department of the Treasury's (Treasury's) evaluation and conclusion as to whether government action on the exchange rate has resulted in currency undervaluation, unless we have good reason to believe otherwise, based on the record as a whole, in which case we will provide Treasury an opportunity to review and rebut the contrary reasoning. Treasury will use a consistent framework to assess currency undervaluation resulting from government action, recognizing country-specific factors. If it is determined that there is currency undervaluation based on government action on the exchange rate, Commerce will proceed to determine whether such action is countervailable.

In determining whether there has been government action on the exchange rate that undervalues the currency, we do not intend in the normal course to include monetary and related credit policy of an independent central bank or monetary authority.

We invite comments not only on this proposed approach, but also as to whether there are other options under the existing law to examine potential currency-related subsidies.

Commerce proposes to modify 19 CFR 351.502 and 19 CFR 351.503 as indicated below. The modification to 19 CFR 351.502 would clarify that enterprises that primarily buy or sell goods internationally can constitute a group of enterprises for purposes of determining specificity. The modification to 19 CFR 351.503 would add a paragraph explaining how Commerce intends to determine benefit when investigating or reviewing a potential subsidy in the form of currency undervaluation under a unified exchange rate system.

Any analysis of currency countervailability must focus on the above-described legal criteria under the U.S. countervailing duty statute, all of which relate to the fundamental principle that countervailing duties address government interventions in the market that cause distortions. There are a variety of possible currency-related fact patterns that might satisfy the legal criteria for countervailability, and it is not Commerce's intention to identify or address them all here. That said, one analytical approach is to view currency undervaluation under a unified currency regime as a domestic currency premium. For instance, this occurs when exporting enterprises exchange U.S. dollars for their domestic currency at a state bank or other entity that Commerce determines on the record of the proceeding to be an authority (or a private entity entrusted or directed by an authority) and, in doing so, receive more domestic currency in exchange for each U.S. dollar converted than they would otherwise earn in the absence of the currency undervaluation. The receipt of domestic currency from an authority (or an entity entrusted or directed by an authority) in exchange for U.S. dollars could constitute the financial contribution under section 771(5)(D) of the Act.

In general terms, the currency undervaluation benefit calculation requires an identification of what the currency's value should be, absent the undervaluation. To do this, one method is to employ the concept of an equilibrium “real effective exchange rate” (REER) or its equivalent, consistent with International Monetary Fund (IMF) methodologies. For the purposes of this rule, equilibrium REER is defined as the REER that would lead to an appropriate level for external balance over the medium term. This equilibrium REER or its equivalent would be employed in the following two-step benefit analysis.

Step 1 would involve a threshold determination of the extent of foreign currency undervaluation, on the basis of a comparison of a country's REER and equilibrium REER in the relevant time period. Parties alleging that there is a currency undervaluation subsidy could submit, where possible, objective, third-party, publicly available estimates of the nominal U.S. dollar rate consistent with the REER needed to achieve external balance. To the extent that a country's equilibrium REER exceeds its REER in the relevant time period, a benefit may exist.

The next step would be to identify the nominal, bilateral U.S. dollar exchange rate consistent with the equilibrium REER that would have prevailed in the relevant time period absent the undervaluation. The difference between (1) this nominal, bilateral U.S. dollar rate that would otherwise have prevailed and (2) the actual average nominal, bilateral U.S. dollar (money or market) rate used for commercial purposes in the relevant time period, could demonstrate the existence of a “benefit” from currency undervaluation.

In assessing the parties' arguments and conducting its analysis, Commerce will timely request that Treasury evaluate any currency undervaluation resulting from government action on the exchange rate. We expect that Treasury will timely provide Commerce with an evaluation and conclusion as to whether and to what extent the government action on the exchange rate has resulted in undervaluation of the currency, and, if Treasury deems appropriate, an evaluation of the benefit arising from such undervaluation. Treasury will use a consistent framework to assess currency undervaluation resulting from government action on the exchange rate, recognizing country-specific factors. Commerce will submit Treasury's evaluation to the record of the administrative proceeding and defer to Treasury's evaluation as to undervaluation in making Commerce's determination as to countervailability, unless Commerce has good reason to disagree with that evaluation, based on the record as a whole, in which case Commerce will provide Treasury an opportunity to review and rebut the contrary reasoning. As with any countervailing duty proceeding, all information presented to or obtained by Commerce during the proceeding will be placed on the administrative record, consistent with section 516A(b)(2)(A)(i) of the Act.

The value of the countervailable benefit to a particular enterprise under investigation or review could be determined by taking into account the amount of U.S. dollars that enterprise converted into domestic currency through an entity determined to be an authority (or entrusted or directed by an authority) during the relevant investigation or review period, the actual exchange rates in effect at the time of conversion, and the nominal dollar rate Commerce determines under this proposed regulatory modification. The benefit could be determined in other ways as well, depending on the particular circumstances.

With respect to the specificity of an undervalued currency under a unified currency regime, an analysis under the proposed regulation could take into consideration a country's balance of payments data and, specifically, the amount of foreign currency supplied by broad categories of entities or activities in that country, e.g., exporters, foreign investors, tourists and recipients of factor income earned abroad. Information, where available, regarding the market supply of foreign currency could provide a reasonable proxy for the amount of U.S. dollars converted into the undervalued domestic currency of the country under investigation.

The final step would be to determine the portion of this total amount that is composed of foreign exchange supplied by enterprises that primarily buy or sell goods internationally. Starting with gross foreign currency supplied by exporters, and deducting the foreign exchange needed by these exporters to purchase any imported inputs used in the production of exported goods, would result in a figure for net foreign exchange supplied by the enterprises in the exporting and importing sector of that country. If enterprises in a country that primarily buy or sell goods internationally collectively constitute a predominant user or account for a disproportionate share of net foreign exchange supply, Commerce could find a currency undervaluation subsidy to be specific to that group of enterprises within the meaning of section 771(5A)(D)(iii) of the Act.

As noted above, the countervailing duty law addresses government interventions in the market that cause distortions to trade and confer unfair advantages on certain economic actors. The proposed modifications, if adopted, would do just that. When state-owned banks or other entities Commerce finds to be authorities (or private entities entrusted or directed by authorities) provide foreign currency in exchange for U.S. dollars, Commerce may determine that there is a government financial contribution. The specificity test in the statute focuses the countervailing duty remedy only on those government interventions that benefit particular sectors of the economy. With respect to benefit, Commerce's analysis would address, in light of record evidence from third-party sources and Treasury, whether there is a financial contribution on terms more favorable than the market would provide. Commerce intends to use its discretion under the existing statute and regulations, including these proposed modifications, to focus the benefit inquiry on government distortions providing an advantage to exporters, consistent with Commerce's existing practice.

Like many of Commerce's regulations, the modifications proposed here are an explanation of how Commerce will apply its existing statutory authority. Commerce notes that our proposed analysis for currency is not fundamentally different from the approach we follow for other types of countervailable subsidies we frequently encounter: Loosely speaking, we examine whether foreign companies are receiving a financial contribution on terms that are better than what is commercially available, absent government action. The purpose is to provide relief to U.S. workers, farmers, ranchers, and businesses who are injured by unfairly subsidized imports—in this case, by virtue of subsidies that occur when a foreign producer/exporter exchanges currency and receives a benefit due to currency undervaluation.

It is also important to note that the Act requires Commerce's determinations in countervailing duty cases be made on the basis of the administrative record. The proceedings are normally adversarial, and accordingly there is often conflicting factual information on the record that might support different determinations by Commerce. Under section 516A(b)(1)(B)(i) of the Act, Commerce may make any determination unless it is unsupported by substantial evidence on the record, or otherwise not in accordance with law ( e.g., arbitrary and capricious).

We note all of Commerce's determinations in countervailing duty cases are made publicly available and are subject to judicial review. Commerce's decisions are fully explained, including calculations supporting the findings and responses to comments made by the interested parties.

We are including here two alternative approaches to assessing the expected economic impact of the proposed rule, if it were to become final, and we welcome comments on both approaches. Note that the economic analyses included in this document have been prepared solely for purposes of providing the public with the information and analyses required by Executive Order 12866 and are not meant to serve as a predictor of the facts in any potential future cases, nor to indicate the likelihood of any particular future determinations. Examples are provided for illustrative purposes only. All of Commerce's countervailing duty determinations are based solely on the administrative record of the proceeding at hand, consistent with the Act and Commerce's regulations.

The first alternative analysis is based on the estimates of the annual total duties that could be collected if currency-related subsidies are countervailed in future proceedings.

This proposed rule, if it becomes final, would explain how Commerce will apply its statutory authority when examining potential subsidies resulting from undervalued currency. As explained above, in multiple prior cases Commerce has examined subsidy allegations based on a unified currency regime. While Commerce declined to initiate on those currency undervaluation allegations due to insufficient evidence provided by the petitioner, there is nothing in existing law or regulations that would prevent a domestic industry from petitioning Commerce immediately to investigate such a subsidy.

Nonetheless, to inform the public discussion of this proposed regulation, we consider the economic impact of a potential increase in the number of currency subsidy allegations that could potentially result from the public's increased awareness that Commerce would consider initiating countervailing duty investigations of such subsidies. As discussed below, we estimate that the total amount of countervailing duties that might be collected due to countervailing such subsidies could range from $3.9 million to $16.6 million annually—or, if certain additional assumptions are made, reflecting an unlikely scenario, up to $21 million. To be clear, this rule itself will not lead to duties in these estimated amounts. Rather, countervailing duties related to a currency-related subsidy can only be imposed after Commerce has reached an affirmative final determination of subsidization and the U.S. International Trade Commission has reached an affirmative final injury determination. Any subsidy determination in a future countervailing duty (CVD) proceeding in which Commerce applies this rule will be based on the administrative record of that proceeding, consistent with the Act and Commerce's regulations. Commerce welcomes public comment on any likely economic effect of this proposed rule.

As a threshold question, we considered whether the proposed regulation would lead to an increase in the number of CVD petitions filed. The number of petitions filed over the past five years has fluctuated considerably. 2 Yet we are not aware of any evidence that the number of potentially countervailable subsidy programs is responsible for this change, even in part. Rather, a key determinant of whether a petition is filed is whether petitioners believe they can meet the statutory requirements for injury. 3 Furthermore, Commerce estimates that a typical affirmative final determination in a CVD case results in a finding of at least 10 countervailable programs  4 —and in some cases, the number is much higher. From the standpoint of a petitioner who has not yet hired advisors to prepare a petition, the number of potentially countervailable subsidies for a given product from a given country is indefinite. Petitioners' awareness (as a result of the proposed regulation) that there is one additional subsidy claim that could be brought is unlikely to significantly change their calculus in deciding whether to invest the necessary time and resources to petition for the imposition of a CVD order.

Accordingly, Commerce does not believe that the proposed regulation will affect the number of CVD petitions received. 5 However, Commerce does believe that the proposed regulation is likely to increase the number of CVD allegations in petitions, because petitioners will be aware that Commerce is willing to investigate and potentially countervail currency undervaluation subsidies when there is a supported allegation and when the financial contribution, benefit, and specificity requirements are met. Therefore, in the remainder of this section, we consider the following question: What is the value of annual duties likely to be collected if Commerce finds a countervailable currency undervaluation subsidy in a proceeding in which both it and the U.S. International Trade Commission have reached final affirmative determinations?

In theory, there are two possible approaches to answering this question. First, we could attempt to estimate the likely value of annual duties from the magnitude of currency undervaluation shown to exist economy-wide in the past. However, this approach is unworkable, because (consistent with statute) countervailing duty calculations are based on company-specific information which is not possible to estimate in the abstract. Given that the range of possible experience can vary widely between companies, it is essentially a speculative endeavor to identify meaningful, representative averages for each variable.

To illustrate this point with a simplified calculation: Assume as an example two hypothetical producers/exporters of subject merchandise in a country are under investigation by Commerce, each with markedly different profiles. Company A is an integrated producer that imports few inputs and sells a relatively large share of its finished product within its domestic market, though also exports some to the United States. Company B is a Foreign Invested Enterprise in the country under investigation that is part of a global supply chain. It imports key inputs (in U.S. dollars) and re-exports a large portion of its finished product to the United States. Assume the REER differential for the country's domestic currency unit (DCU) is 10 percent. Also, assume two scenarios for each company: One where the bilateral nominal exchange rate is undervalued by 5 percent (scenarios A 1 and B 1 ) and one where it is undervalued by 10 percent (scenarios A 2 and B 2 ). Finally, assume that neither company receives the currency subsidy benefit indirectly, and that the current nominal exchange rate is 1 U.S. dollar per DCU 1.05.

Note that under Commerce's CVD methodology, in calculating a company-specific CVD rate for a given domestic ( i.e., non-export-contingent) subsidy, Commerce will normally use the company's total worldwide sales (including domestic sales and sales to third countries) of domestically manufactured products as the denominator. All other things equal, the result of using total sales as the denominator compared to using, e.g., just export sales (as Commerce does for export-contingent subsidies) is generally to reduce the CVD rate for that subsidy. The magnitude of that reduction will depend on the particular company's ratio of export to total sales, among other things. Accordingly, in the event of an affirmative finding of a countervailable subsidy in a future proceeding under the proposed regulation—which sets out a framework for analyzing currency undervaluation as a domestic subsidy—the higher the worldwide sales of the subsidy recipient, the lower the CVD rate that Commerce would assign to that subsidy recipient, all else equal.

The examples presented above, while hypothetical, serve to illustrate that company-specific valuations of a subsidy benefit from currency undervaluation can vary significantly depending on the assumptions for at least three key variables: (i) The extent to which the nominal bilateral U.S. dollar rate falls below the level consistent with the equilibrium REER value; (ii) the extent to which the company converted U.S. dollars into domestic currency during the relevant time period; and (iii) the value of the company's total sales (of all products, to all markets). The larger (or smaller) the divergence in the nominal bilateral (in (i) above), the larger (or smaller) is the subsidy benefit in absolute terms, all else equal; and (ii) the larger (or smaller) the amount of U.S. dollars converted into domestic currency (in (ii) above), the larger (or smaller) is the benefit, all else equal. However, this tells us nothing about how large or small the countervailing duty rate is since this rate is equal to the benefit in U.S. dollars divided by the U.S. dollar value of the company's total sales ( i.e., the ratio of the two variables). Since there is no necessary correlation or relationship between the total sales variable and the other two variables, or between the benefit amount and the sales amount of the ratio that defines the countervailing duty rate, neither the currency undervaluation variable nor the U.S. dollar conversion variable alone gives any indication of the ultimate countervailing duty rate for currency undervaluation. Thus, in the case of a large currency undervaluation, the countervailing duty rate can nevertheless be zero; and in the case of a small currency undervaluation, the countervailing duty rate can be large. For this reason, as stated above, we cannot estimate the likely value of annual duties from the magnitude of currency undervaluation shown to exist economy-wide in the past.

The second possible approach, presented below, is to base our estimate on aggregated historical data for the value of CVDs deposited—which we assume to be a function of the number of subsidy allegations made to Commerce. This aggregated historical data serves as the baseline for our impact analysis. According to data from Customs and Border Protection, 6 the average annual amount of total duties deposited under CVD orders over the last five fiscal years (FY 2014-18) was $527 million. The average annual value of imports subject to CVD during that timeframe was $4.22 billion. Thus, an average total CVD rate of roughly 12 percent was deposited on every dollar of imports subject to CVD. 7

As noted above, Commerce estimates that a typical CVD case involves at least 10 countervailable programs. 8 Thus, we have calculated a conservatively high average 1.2 percent CVD rate for each subsidy program found to be countervailable in a typical case. 9 There is no reason to think that this figure would be different for currency-related subsidies. 10

As of the drafting of this notice, there are 116 CVD orders in effect. While Commerce does not believe that implementation of this currency undervaluation methodology will result in an increase in CVD investigations (as discussed above), for purposes of illustration we assume hypothetically that the proposed regulation would result in an additional two CVD orders per year that would not have otherwise existed absent the adoption of this methodology, which equals a roughly two percent increase in the number of existing orders. 11 Therefore, as a corollary, we assume that the average value of imports subject to CVD increases two percent from $4.22 billion to $4.3 billion. To be clear, Commerce is not aware of any precedent for new petitions as the result of the public's increased awareness that a type of subsidy is potentially countervailable. Therefore, in our view, a two percent increase in the number of petitions due solely to the public's increased awareness that currency undervaluation subsidies are potentially countervailable represents an outlier scenario.

We currently have information in the public domain from two sources (IMF and Peterson Institute for International Economics) regarding whether countries' exchange rates were undervalued during 2017. 12 For some countries the two sources agree, but for other countries one source finds there is undervaluation and the other source finds there is not; moreover, the lists of countries assessed by the two sources are not identical. Additionally, these two sources are not making a judgment about whether the undervaluation is a result of government action on the exchange rate, which would be part of the evaluation and conclusion provided by Treasury in the proposed rule. Commerce has not made any decision as to how we will treat instances where our information sources disagree over undervaluation for a given country. This will depend upon the record evidence, including any analysis provided by Treasury, and interested parties' arguments in a given proceeding.

However, hypothetically, if Commerce were to find that a currency is undervalued because at least one of the two sources' point estimates indicates undervaluation (the “more conservative” scenario, in that it results in a higher estimate of economic significance), then the data show that roughly 32 percent of total imports subject to CVDs are from countries with undervalued currencies. 13 As an alternative hypothetical, if Commerce were to find that a currency is undervalued because both sources (and in the case of IMF, the entire reported range) support such a determination (the “less conservative” scenario), then only 7.6 percent of total imports subject to CVDs are from a country (in fact, only one country—Korea) with an undervalued currency. 14

Under the more conservative scenario: 32 percent * $4.30 billion = $1.38 billion in average annual imports that are covered by CVD orders and are from countries with undervalued currencies. Next, $1.38 billion * 1.2 percent CVD rate calculated for a currency subsidy = $16.6 million in total annual duties collected for countervailing currency undervaluation subsidies. 15

Under the less conservative scenario: 7.6 percent * $4.30 billion = $327 million in average annual imports that are covered under CVD orders and are from countries with undervalued currencies. Next, $327 million * 1.2 percent CVD rate calculated for a currency subsidy = $3.9 million in total annual duties collected for currency undervaluation subsidies.

Although Commerce believes that the assumptions underlying the two scenarios above are the most reasonable based on past CVD practice, other assumptions would lead to significantly higher estimates of economic impact. For example, if the total value of imports subject to countervailing duties is assumed to be double the historical average ( i.e., $8.44 billion); the share of all imports from undervalued countries is assumed to be 50 percent (rather than the maximum of 32 percent suggested by the relevant data sources we have cited from PIIE and IMF), and the average CVD rate for currency undervaluation is assumed to be double the historical average for other subsidies ( i.e., 2.4 percent rather than 1.2 percent); then the calculation of economic impact would be as follows: $8.44 billion * 50% * 2.4 percent = $101.3 million.

Commerce notes that there is no evidence that CVDs—which are imposed only on very specific products from a particular country ( e.g., certain carbon and alloy cut-to-length steel plate from the Republic of Korea)—deter trade with the country more generally. Commerce currently has 58 CVD orders on China, the most for any single country, and each CVD order typically involves multiple subsidy programs (of which currency undervaluation would be only one). Yet U.S. imports from China have continued to rise significantly over the last several years to $540 billion in 2018 (up from $440 billion in 2013). Similarly, Commerce currently has 19 CVD orders on imports from India (again, with each order typically encompassing multiple subsidy programs), and yet total U.S imports from India have continued to rise significantly over the last several years to $54 billion in 2018 (up from $42 billion in 2013). Commerce has a total of 116 CVD orders in place, but the value of imports impacted by those orders equates to just 0.3 percent of all imports into the United States in FY 2018.

It is important to underscore four additional points in this context. First, the fact that currency undervaluation subsidies may be perceived to be available to a variety of industries and enterprises throughout a particular country's economy does not distinguish them from other subsidies that Commerce already countervails today. For example, Commerce has often countervailed the provision of electricity for less than adequate remuneration in CVD proceedings involving imports from China. This is largely a reflection of the fact that this program is frequently included among the countervailable subsidies alleged in CVD petitions submitted from petitioning U.S. industries, which in turn reflects the fact that most foreign industries that have been involved in U.S. CVD proceedings use electricity in their production processes. The fact that Commerce has frequently found electricity subsidies in prior China CVD cases has not led to new CVD petitions being filed by U.S. industries that would not otherwise be filed. Land, policy lending, and export buyers credits, which Commerce frequently countervails, similarly illustrate this point.

Moreover, while it may seem that the total aggregate value of these types of government supports across all recipients could be relatively large, given the various enterprises and industries to which they may be available, there is no basis to presume a relatively large economy-wide value translates into a larger CVD rate for the program for a given company. This is because, as explained above, the CVD rate for domestic subsidies is generally determined on a company-specific basis, taking into account the amount of subsidy received by a particular producer/exporter of subject merchandise, and the total worldwide sales of the company for relevant products ( i.e., those products that benefit from the subsidy, which may be a broader category than the subject merchandise).

Likewise, assuming arguendo that the benefit from a currency undervaluation subsidy in a given country is large in the aggregate, Commerce does not believe that that is a sufficient basis to presume that a company-specific CVD rate calculated for currency undervaluation will likely be larger than the program rates for any other subsidies that company receives. For example, in Countervailing Duty Investigation of Certain Corrosion-Resistant Steel Products From the Republic of Korea: Final Affirmative Determination, and Final Affirmative Critical Circumstances Determination, in Part, 81 FR 35310 (June 2, 2016), the Government of Korea reported in its public submissions that the Korean Development Bank (a Korean government policy bank) provided close to $14 billion in loans in 2014 to Korean companies under its “Short-Term Discounted Loans for Export Receivables” program. However, despite the considerable size of the program in the aggregate, we calculated a company-specific rate for that subsidy program of less than 0.01 percent for one of two Korean respondent companies in that CVD proceeding. The second respondent company in the investigation reported not using the program at all, and therefore received no rate for that program. 16 That said, we invite the public to comment on this issue. Similarly, the aggregate value of the Government of India's “Merchandise Exports from India Scheme” was reportedly close to $2 billion (Rs 12,746 in Crore) during India's 2016-17 budget year. 17 And yet, in a CVD investigation of that subsidy program involving Indian producers of cold-drawn mechanical tubing during that period, Commerce determined that the company-specific program rate for that subsidy was only 0.12 percent for one of the companies under investigation, and 1.48 percent for another company. See Certain Cold-Drawn Mechanical Tubing of Carbon and Alloy Steel from India: Final Affirmative Countervailing Duty Determination, 82 FR 58172 (December 11, 2017).

Second, the products that are subject to countervailing duty (and antidumping duty) investigations are typically defined very narrowly by the petitioners. This is due, at least in part, to the relationship between the scope of Commerce's investigations and the U.S. International Trade Commission's definition of the domestic like product. 18 This will not change if Commerce begins to countervail currency undervaluation subsidies.

Third, as noted above, Commerce estimates that a typical CVD case involves 10 countervailable subsidy programs. Furthermore, based on anecdotal evidence, it can cost private parties more than one million dollars in legal and other fees to petition for the imposition of CVDs on a particular product from a particular country. Accordingly, to the extent that the proposed regulation would change CVD practice, it is likelier to lead to one additional CVD allegation in petitions that would otherwise have been submitted—not an increase in the overall number of CVD petitions.

Fourth, Commerce again notes that the proposed rule simply explains that companies that primarily buy or sell goods internationally can comprise a “group” of enterprises for specificity purposes. This is consistent with what Commerce has done in other situations. For example, in Coated Free Sheet Paper from the People's Republic of China: Final Affirmative Countervailing Duty Determination, 72 FR 60645 (October 25, 2007), Commerce explained in Comment 14 of the Decision Memorandum that foreign invested enterprises (FIEs) constitute a “group” of enterprises, notwithstanding the fact that they may operate in a variety of industries. Likewise, in a 2010 policy bulletin, available at https://enforcement.trade.gov/policy/PB-10.1.pdf, Commerce explained that state-owned enterprises (SOEs) can constitute a “group” of enterprises. Treating FIEs or SOEs as a group for purposes of the specificity analysis has not led to a discernable increase in the number of CVD investigations. Accordingly, we do not believe that the specificity provision in this proposed regulation will lead to a discernable increase in the number of CVD investigations.

All of this information confirms that the proposed regulation is unlikely to dramatically change the total volume of imports subject to CVDs. Rather, it may lead to an uptick in total CVD rates if and only if Commerce determines that there are currency undervaluation subsidies in countries during the relevant time periods. This supports the estimates of economic impact provided above, ranging from approximately $4 million to less than $17 million.

In sum, based on the reasoning provided above, Commerce is of the view that regulatory guidance on how it will treat subsidy allegations regarding currency undervaluation is no different from existing regulations, for example, addressing the treatment of loans by state-owned banks (19 CFR 351.505), equity infusions (19 CFR 351.507), or exemptions for prior-stage cumulative indirect taxes (19 CFR 351.518).

During interagency discussions, an alternative approach to assessing the economic significance of the rule emerged. This alternative approach attempts to determine the likely economic impact of the proposed regulation, based on the overall magnitude of currency-related subsidies provided to all economic actors, regardless of their company-specific features and their engagement (or lack thereof) in unfair trade that injures a domestic industry.

As discussed in more detail above, Commerce frequently countervails the provision of electricity for less than adequate remuneration in its CVD proceedings involving imports from China; this analysis will use extrapolations from this past experience as a means of exploring the potential impact of currency-related subsidies. 19 This analysis begins by estimating the electricity portion of Chinese imports' overall subsidy rate, which along with the Chinese portion of worldwide countervailable imports yields an estimate of the countervailing duties associated with Chinese electricity subsidies. The result is then extrapolated, proportionate to estimates of the total relevant subsidies, from the electricity context to currency.

Table 2 reports electricity-associated and total subsidy rates for a random sample of the approximately 35 Chinese countervailable subsidies for which final affirmative determinations were published in the Federal Register between 2014 and 2018. 20 Also reported are import values associated with the relevant products, which will be used to calculate an import-weighted average of the electricity portion of overall countervailing duties.

The average, weighted by import value, of the electricity portion of the overall subsidy rate is 5.25 percent. 21 The Customs and Border Protection data cited above indicate that 17 percent of countervailable imports are from China. This, in turn, yields an estimate that $4.7 million (= 5.25 percent × 17 percent × $527 million) in annual countervailing duties are associated with Chinese electricity subsidies.

This document discusses the background, goals, and comments received during the demonstration and the reasons for continuing the demonstration. Section II provides background on the origins of the Uniform Physical Condition Standards for Vouchers (UPCS-V) and progress of the demonstration. Section III discusses the impact of comments on the test plan for the demonstration and reframed goals based on those comments. Section IV describes what HUD is looking to accomplish in the next phase of the demonstration.

Information on the Housing Choice Voucher program and the current Housing Quality Standards (HQS), codified at 24 CFR 982.401, was presented in the May 4, 2016 Demonstration Notice. 1 The HUD Office of Inspector General (OIG) released several audit reports and evaluations identifying weakness in the current HCV inspection program. 2 Additionally, the Senate Committee on Appropriations issued Report 113-045, accompanying the Senate bill for HUD's 2014 appropriations, directing HUD to “. . . move to a consistent inspection standard across housing assistance programs, as well as [for] oversight of Section 8 units.”  3 In the Joint Explanatory Statement accompanying the Consolidated Appropriations Act of 2016, Public Law 114-113, approved December 18, 2015, Congress again directed HUD to implement a single inspection protocol for public housing and voucher units. 4 Based on these findings and directives, HUD commenced the development of the UPCS-V inspection standard. Congress provided HUD with funding to improve its oversight of the HCV inspection program and to move the inspection standard for the HCV program to a standard consistent with other affordable housing programs, incorporating modern health and safety practices. 5

HUD is developing a single inspection standard for all units under the Public Housing, Housing Choice Voucher (HCV) and Multifamily programs, called National Standards for the Physical Inspection of Real Estate (NSPIRE). NSPIRE will leverage the infrastructure of UPCS-V to demonstrate, test, and validate NSPIRE protocols. HUD envisions NSPIRE being used for all housing inspections.

Under the demonstration, HUD trained numerous public housing agencies (PHAs) and continues to train PHAs on a regular basis. Currently over 200 PHAs are actively participating in the program. This participation has been critical to the development of a viable inspection protocol. Active PHA participation in the demonstration allows HUD to conduct analysis on a statistically valid number of inspections using the UPCS-V Protocol version 2.5. 6 In addition to training on the protocol and inspection process, HUD provided devices to some demonstration participants to mitigate the potential cost of off-the-shelf devices.

UPCS-V Protocol version 2.5 is currently active in the field. The much improved, streamlined, and alphabetized Defect Dictionary of UPCS-V Beta was drafted while version 2.5 was active in the field. In order to validate the changes made to the inspection protocol, HUD must field test UPCS-V Beta over the next two years. Further, HUD hopes to increase demonstration participation to gather more representative and informative data. HUD continues to recruit PHAs to participate. Contact ISDV@HUD.GOV for more information on becoming a demonstration participant. HUD welcomes additional PHA participation.

The initial demonstration was tailored to allow a variety of PHAs to participate. Many PHAs commented they wanted to participate but did not meet the initial selection criteria of the original demonstration notice, including PHA size, geographical spread, and/or number of inspections per week. HUD considered these comments and deemed it beneficial to allow some PHAs to participate in the demonstration that did not meet the initial criteria because it allowed stress testing in diverse environments and provided a more representative sample of inspections and issues. HUD also agreed with commenters with respect to allowing the participation of PHAs who use contract inspectors to conduct their inspections. Public comments supported the expansion of the selection criteria.

As a result of the ongoing demonstration, HUD developed, tested, and fielded a mobile inspection application that has received increasingly positive feedback from PHAs. PHA feedback has been critical throughout the demonstration, resulting in a significantly improved user experience for PHAs and increased data flow to HUD.

HUD's published list of Life-Threatening Conditions was an area of concern for several commenters. 7 As many commenters noted, the expansion of UPCS-V will be easier to adopt by PHAs if the existing management applications is an integrated UPCS-V Protocol; to that end, HUD formatted the system to allow stakeholders to familiarize themselves with the progress of HUD's software development. 8

Decent, safe, and sanitary housing is the objective of National Housing Policy, 42 U.S.C. 12702, and the primary goal of UPCS-V. HUD seeks to provide PHAs with an inspection protocol that gives them insight into the housing quality of subsidized units so they can use data-driven decisions to guide their program administration. The protocol itself is objective, accurate, and consistent in order to realize the goals of insightful data, which ensures PHAs provide decent, safe, and sanitary housing.

The three components of the demonstration, (1) evaluation of the revised inspection model (UPCS-V), (2) data standardization and information exchange, and (3) insight for improvement have made significant progress during the demonstration. 9 UPCS-V Beta is awaiting validation in the field. By standardizing inspection procedures with participating PHAs, HUD seeks to provide access to incisive inspection data unavailable before. HUD's work with software vendors represents the first step in honing data standardization and information exchange to facilitate PHA access to meaningful data metrics. The third component of the demonstration provides insight for improvement. HUD's increasing capacity to analyze data provides PHAs with insight needed to improve their detailed understanding of the condition of voucher-assisted housing available through their program.

To gather additional data and allow increased PHA participation, while avoiding the burden of defaulting to their original inspection models by current participants, HUD recognized the need to continue the UPCS-V Demonstration.

HUD welcomes input from every sector of the stakeholder population including tenants, landlords, and 3rd party software developers. HUD received positive feedback with respect to the streamlined and alphabetized defect dictionary of UPCS-V Beta. The current inspection application has significant improvements based on user feedback. HUD's software development team continues to communicate with stakeholders. These achievements are the groundwork for successfully modernizing the voucher-assisted housing inspection standard.

HUD must consider several factors of significance in evaluating UPCS-V for successful completion. Does the protocol meet PHA needs? Is UPCS-V clear, accurate, objective, and consistent? Is it practical for all inspectors, from entry level to experienced? Does it provide valuable insight to PHAs, and is it cost effective for them to use? Inspection application development, training, and user acceptance testing are all critical components of providing stakeholders a quality product. The demonstration must encompass all these necessary components to provide stakeholders with a tool that meets their needs. To meet PHA needs and thoroughly address the above questions, a two-year continuation of the UPCS-V demonstration is necessary.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

The Coast Guard was notified by the Mercer Island Police Department of hazardous conditions associated with increased vessel and swimmer congestion after high traffic Seafair marine events, which can make routine navigation for persons and vessels unsafe. The Seafair event draws an extraordinary amount of boaters and persons to the waterway to observe several high traffic events, such as the Seafair Hydroplane Races and Seafair Air Shows. The wakes created by transiting vessels near the vicinity of vessels moored to the log boom during high traffic events pose a safety concern to vessels and swimmers in the area. Coast Guard action is needed to restrict vessel movement prior to and after Seafair events where significant marine traffic endanger the safety of swimmers and vessels proximate to the log boom.

The purpose of this rulemaking is to ensure the safety of persons and vessels on the navigable waters of Lake Washington within the regulated navigation area from excessive vessel wake occurring prior to and after Seafair events. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).

The District Commander is proposing to establish a regulated navigation area prior to and after Seafair activities, which usually occur during the last week of July and the first two weeks of August. The regulated navigation area would cover all navigable waters within Lake Washington south of the Interstate 90 floating Bridge and north of a line between Bailey Peninsula and Mercer Island. The duration of the regulated navigation area is intended to protect personnel and vessels in these navigable waters from excessive wake associated with vessels before and after high traffic Seafair events. Vessels transiting the area will be required to create minimum wake at speeds of less than 7 miles per hour, unless a higher minimum speed is necessary to maintain bare steerageway. Enforcement periods for this rule will occur daily prior to and immediately following Seafair activities. The regulatory text we are proposing appears at the end of this document.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration and time-of-day of the regulated navigation area. Vessel traffic will be able to transit through the regulated navigation area, and the regulation will only impact a small designated area of Lake Washington for less than three days. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the regulated navigation area.

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

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

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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

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

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a regulated navigation area enforced annually for a total of less than 3 days that would restrict vessel speed to a minimum wake of less than 7 miles per hour. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to https://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit https://www.regulations.gov/privacyNotice.

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:

On April 9, 2019, the EPA published a proposed rulemaking to approve the Idaho State Implementation Plan, submitted on September 27, 2018, as meeting infrastructure requirements for the 2015 ozone NAAQS (84 FR 14067). Documents relevant to the proposed action were inadvertently left out of the docket during the initial comment period. In response, the EPA is reopening the public comment period.

I. Background

On March 12, 2008, EPA promulgated an ozone NAAQS that revised the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm. 1 See 73 FR 16436 (March 27, 2008). Pursuant to CAA section 110(a)(1), within three years after promulgation of a new or revised NAAQS (or shorter, if EPA prescribes), states must submit SIPs that meet the applicable requirements of section 110(a)(2). EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. One of the structural requirements of section 110(a)(2) is section 110(a)(2)(D)(i), which generally requires SIPs to contain adequate provisions to prohibit in-state emissions activities from having certain adverse air quality effects on neighboring states due to interstate transport of air pollution. There are four sub-elements, or “prongs,” within section 110(a)(2)(D)(i) of the CAA. CAA section 110(a)(2)(D)(i)(I), also known as the “good neighbor” provision, requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in another state. The two provisions of this section are referred to as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance). Section 110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions to prohibit emissions that will interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4). This proposed action addresses only prongs 1 and 2 of section 110(a)(2)(D)(i). All other infrastructure SIP elements for South Carolina for the 2008 8-hour ozone NAAQS were addressed in separate rulemakings. 2

On June 18, 2018, the South Carolina Department of Health and Environmental Control (SC DHEC) provided a SIP submittal  3 to EPA to address the interstate transport requirements of sections 110(a)(2)(D)(i)(I) for the South Carolina SIP. South Carolina made this submission to certify that its SIP contains adequate provisions to prohibit emissions activities within the State which will contribute significantly to nonattainment or interfere with maintenance of the 2008 8-hour ozone NAAQS in any other state, and therefore, adequately addresses the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS. 4 South Carolina's certification is based on air quality monitoring and modeling data, SIP-approved and state provisions regulating emissions of ozone precursors (volatile organic compounds (VOCs) and nitrogen oxides (NO X )) within the State, and an analysis of recent trends in emissions of ozone precursors (VOCs and NO X ) from South Carolina sources.

EPA developed technical information and related analyses to assist states with meeting section 110(a)(2)(D)(i)(I) requirements for the 2008 8-hour ozone NAAQS through SIPs and, as appropriate, to provide backstop federal implementation plans (FIPs) in the event that states failed to submit approvable SIPs. 5 On October 26, 2016, EPA took steps to effectuate this backstop role with respect to eastern states  6 by finalizing an update to the 2011 Cross-State Air Pollution Rule (2011 CSAPR) ozone season program that addresses good neighbor obligations for the 2008 8-hour ozone NAAQS (CSAPR Update). 7 The CSAPR Update establishes statewide NO X budgets for certain affected electricity generating units in 22 eastern states for the May through September ozone season to reduce the interstate transport of ozone pollution in the eastern United States, and thereby help downwind states and communities meet and maintain the 2008 8-hour ozone NAAQS. See 81 FR 74504 (October 26, 2016). The rule also determined that emissions from 14 states (including South Carolina) will not significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in downwind states. Accordingly, EPA determined that it need not require further emission reductions from sources in those states to address the good neighbor provision as to the 2008 ozone NAAQS. Id.

The CSAPR Update used the same framework that EPA used when developing the original 2011 CSAPR, EPA's interstate transport rule addressing the 1997 8-hour ozone NAAQS as well as the 1997 and 2006 fine particulate matter (PM 2.5 ) NAAQS. This framework established the following four-step process to address the requirements of the good neighbor provision: (1) Identify downwind areas, referred to as receptors, that are expected to have problems attaining or maintaining the NAAQS; (2) determine which upwind states impact these identified problems in amounts sufficient to “link” them to the downwind air quality problems; (3) for states linked to downwind air quality problems, identify upwind emissions, if any, that will significantly contribute to nonattainment or interfere with maintenance of a NAAQS; and (4) reduce the identified upwind emissions for states that are found to have emissions that will significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind by adopting permanent and enforceable measures in a FIP or SIP. In the CSAPR Update, EPA used this four-step framework to determine whether states in the east will significantly contribute to nonattainment or interfere with maintenance of downwind air quality. As explained below, the CSAPR Update's four-step analysis supports the conclusions provided in SC DHEC's June 18, 2018, interstate transport SIP submittal for the 2008 8-hour ozone NAAQS that the state will not significantly contribute to nonattainment or interfere with maintenance of the standard in other states.

In the technical analysis supporting the CSAPR Update, EPA used detailed air quality analyses to determine where projected nonattainment or maintenance receptors would be, at step 1 of the four-step framework, and whether emissions from an eastern state contribute to downwind air quality problems at those projected nonattainment or maintenance receptors, in step 2 of the framework. Specifically, EPA determined whether each state's contributing emissions were at or above a specific threshold. EPA determined that one percent was an appropriate threshold to use in this analysis because there were important, even if relatively small, contributions to identified nonattainment and maintenance receptors from multiple upwind states at that threshold. 8 See 81 FR 74504 (October 26, 2016). For the CSAPR Update, EPA applied an air quality screening threshold of 0.75 ppb (equivalent to one percent of the 2008 8-hour ozone NAAQS of 75 ppb) to identify linkages between upwind states and the downwind nonattainment and maintenance receptors. States with impacts below the one-percent threshold were considered not to contribute to identified downwind nonattainment and maintenance receptors and therefore would not contribute significantly to nonattainment or interfere with maintenance of the standard in those downwind areas. If a state's impact was equal to or exceeded the one-percent threshold, that state was considered “linked” to the downwind nonattainment or maintenance receptor(s) and the state's emissions were further evaluated, taking into account both air quality and cost considerations, to determine whether any emissions reductions might be necessary to address the state's obligation pursuant to CAA section 110(a)(2)(D)(i)(I).

As discussed in the final rulemaking for the CSAPR Update, the air quality modeling contained in EPA's technical analysis: (1) Identified locations in the U.S. where EPA anticipated nonattainment or maintenance issues in 2017 for the 2008 8-hour ozone NAAQS (these were identified as nonattainment or maintenance receptors, respectively), and (2) quantified the projected contributions from emissions from upwind states to downwind ozone concentrations at the receptors in 2017. See 81 FR 74504 (October 26, 2016). This modeling used the Comprehensive Air Quality Model with Extensions (CAMx version 6.11) to model the 2011 base year and the 2017 future base case emissions scenarios to identify projected nonattainment and maintenance sites with respect to the 2008 8-hour ozone NAAQS in 2017. EPA used nationwide state-level ozone source apportionment modeling (the CAMx Ozone Source Apportionment Technology/Anthropogenic Precursor Culpability Analysis technique) to quantify the contribution of 2017 base case NO X and VOC emissions from all sources in each state to the 2017 projected receptors. The air quality model runs were performed for a modeling domain that covers the 48 contiguous United States, the District of Columbia, and adjacent portions of Canada and Mexico. The updated modeling data released to support the final CSAPR Update for South Carolina inform the Agency's analysis of upwind state linkages to downwind air quality problems for the 2008 8-hour ozone NAAQS. See CSAPR Update Modeling Technical Support Document (TSD).

EPA's air quality modeling for the final CSAPR Update indicated that South Carolina's largest impact on any projected downwind nonattainment receptor in 2017 was 0.15 ppb and South Carolina's largest contribution to any projected downwind maintenance-only site in 2017 was 0.30 ppb. 9 These values are below the one percent screening threshold of 0.75 ppb, and therefore there are no identified linkages between South Carolina and 2017 downwind projected nonattainment and maintenance sites.

Additionally, the CSAPR Update addressed the decision from the United States Court of Appeals for the District of Columbia Circuit in EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015), remanding for reconsideration certain state ozone season NO X emission budgets from the original CSAPR (including South Carolina's) with respect to the 1997 8-hour ozone NAAQS. 10 EPA removed South Carolina from the CSAPR ozone season trading program beginning in 2017. 11

As mentioned in section I, South Carolina's June 18, 2018, submittal certifies that emission activities from the State will not contribute significantly to nonattainment or interfere with maintenance of the 2008 8-hour ozone NAAQS in any other state for the following reasons: (1) Modeling conducted by EPA in support of the CSAPR Update indicates that South Carolina's impact on any downwind receptor is far less than 1 percent of the standard; (2) NO X and VOC precursor emissions and monitored ozone concentrations in South Carolina have decreased since 2002; and (3) South Carolina has in place both SIP-approved and state provisions that regulate ozone precursors in the State. Based on an assessment of this information, EPA proposes to approve South Carolina's SIP submission because it has adequate provisions to ensure that emissions from sources within the State will not significantly contribute to nonattainment or interfere with maintenance of the 2008 8-hour ozone NAAQS in any other state.

South Carolina's submittal assessed EPA's CSAPR Update modeling, which showed South Carolina's impact on downwind receptors for the 2008 8-hour ozone NAAQS as far less than one percent of the standard ( i.e., 0.75 ppb). South Carolina cites to EPA's August 2016 CSAPR Update Modeling TSD where the modeling indicated that South Carolina's largest impact on any projected downwind nonattainment receptor in 2017 was 0.15 ppb and the largest impact on any projected downwind maintenance-only site was 0.30 ppb, both of which are below 0.75 ppb, the one percent threshold for the 2008 ozone NAAQS. Therefore, EPA concluded in the CSAPR Update that South Carolina's emissions will not contribute to downwind nonattainment and maintenance receptors and therefore, did not finalize a FIP that required additional emission reductions from South Carolina. Accordingly, in the CSAPR Update, EPA made a final determination that South Carolina emissions will not significantly contribute to nonattainment or interfere with the 2008 ozone NAAQS in other states and that sources in the State are not required to further reduce emissions pursuant to the good neighbor provision with respect to this standard. 12

South Carolina's submittal also notes that total annual NO X emissions and total annual VOC emissions in South Carolina have decreased by 47 percent and 36 percent, respectively, between 2002 and 2014. South Carolina indicates that monitored ozone concentrations in the State are also trending downward, due to the success of federal and state air regulations, which correlates to the decline in ozone precursor emissions.

SC DHEC identified regulations that have been approved into the South Carolina SIP to provide for the control of NO X and nitrogen dioxide (NO 2 ), which are precursors that contribute to ambient ozone concentrations. These regulations include Regulations 61-62.5, Standard 7— Prevention of Significant Deterioration, and 61-62.5, Standard 7.1— Nonattainment New Source Review, which provide for the implementation of a permitting program required under Title I, Parts C and D of the CAA for sources of NO X . The permitting requirements help ensure that no new or modified sources in the State subject to these permitting regulations will significantly contribute to nonattainment or interfere with maintenance of the2008 8-hour ozone NAAQS. SC DHEC also identified SIP-approved Regulation 61-62.1 Definitions and General Requirements, which provide enforceable emission limits and other control measure, means, and techniques. SIP-approved Regulation 61-62.5, Standard No. 5.2, Control of Oxides of Nitrogen ( NO X ) establishes emission standards and compliance (testing and monitoring) requirements respectively for stationary sources of air pollution emissions. 13

South Carolina further identified the following regulations that provide for the implementation of VOC emissions controls: Regulation 61-62.60, South Carolina Designated Facility Plan and New Source Performance Standards and Regulation 61-62.61, National Emission Standards for Hazardous Air Pollutants and National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Source Categories. While these rules are not approved into the federally-approved SIP, they incorporate the federal requirements of 40 CFR parts 60 and 63 by reference.

Based on the information presented herein, EPA proposes to approve South Carolina's June 18, 2018, SIP submission on grounds that it addresses the State's 110(a)(2)(D)(i)(I) good neighbor obligation for the 2008 8-hour ozone NAAQS because the EPA has found that the State will not significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in any other state.

EPA is proposing to approve South Carolina's June 18, 2018, SIP submission demonstrating that South Carolina's SIP is sufficient to address the CAA requirements of prongs 1 and 2 under section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS. EPA requests comment on this proposed approval of South Carolina's SIP.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

This is a summary of the Public Notice ( 833 Auction Comment Public Notice ), AU Docket No. 19-101, WC Docket No. 17-192; CC Docket No. 95-155, FCC 19-41, adopted on May 9, 2019 and released on May 10, 2019. The complete text of the 833 Auction Comment Public Notice is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text is also available on the Commission's website at https://www.fcc.gov/wireline-competition/competition-policy-division/numbering-resources/833-toll-free-number-auction or by using the search function for AU Docket No. 19-101 on the Commission's ECFS web page at www.fcc.gov/ecfs/. Alternative formats are available to persons with disabilities by sending an email to FCC504@fcc.gov or by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated in the 833 Auction Comment Public Notice in AU Docket No. 19-101.

1. With the 833 Auction Comment Public Notice, the Commission takes another step toward modernizing the way it distributes toll free numbers. Specifically, the Commission initiates the pre-bidding process for the auction of certain toll free numbers in the 833 code (833 Auction). The 833 Auction will make available over 17,000 numbers in the 833 code for which there have been multiple competing requests. This auction will serve as an experiment in using competitive bidding as a way to assign toll free numbers equitably and efficiently.

2. While toll free numbers have been assigned on a first-come, first serve basis traditionally, the Commission modified its toll free assignment rule last year to provide greater flexibility and permit alternative approaches to assigning numbers. Specifically, in the Toll Free Assignment Modernization Order, 83 FR 53377, October 23, 2018, the Commission added competitive bidding as a method to assign toll free numbers and, as an experiment in using this approach, established the 833 Auction to assign numbers that were requested by two or more Responsible Organizations (“RespOrgs”) during the 833 pre-code opening process. The Commission also opened participation in the 833 Auction to not only RespOrgs but also potential subscribers who may wish to participate directly.

3. In establishing this experiment in the Toll Free Assignment Modernization Order, the Commission set out the general framework for the 833 Auction and designated Somos, Inc., the Toll Free Numbering Administrator, as the auctioneer. The Toll Free Assignment Modernization Order also called for a pre-bidding process during which the Commission would seek comment on detailed auction procedures, as is typical in Commission auctions. With the 833 Auction Comment Public Notice, the Commission initiates the pre-bidding process.

4. After receiving comments, the Commission will release a public notice establishing the final application and bidding procedures for the 833 Auction (833 Auction Procedures Public Notice), including the dates and deadlines by which potential bidders must meet the requirements necessary to qualify to bid. Somos will then be required to implement the established procedures to conduct the auction, including: Accepting applications to participate in the bidding; accepting upfront payments; determining which applicants are qualified to bid; accepting and processing the bids; announcing the winning bidders; and accepting final payments. After the 833 Auction is complete, the Commission will use the information from the auction to determine how to proceed with assigning future toll free numbers.

5. In the 833 pre-code opening process, Somos identified 17,638 numbers as mutually exclusive ( i.e., requested by two or more RespOrgs). A complete list of these 17,638 numbers is available at www.somos.auction.com. These numbers will be offered in the 833 Auction, with one exception. Specifically, the Commission in the Toll Free Assignment Modernization Order allowed government entities and non-profit health and safety organizations the ability to file a petition to set aside a previously identified mutually exclusive 833 number. On April 16, 2019, the Wireline Competition Bureau released a Public Notice seeking petitions to set aside toll free numbers for public health and safety purposes. If a petition is granted with respect to a particular number, that number will be assigned to the petitioner and unavailable in the 833 Auction.

6. Because the Commission recognizes that many parties interested in acquiring one or more of the identified 833 toll free numbers may not be familiar with participating in its auctions, the Commission provides an overview of the process.

7. In addition to establishing the final auction procedures for the 833 Auction, the 833 Auction Procedures Public Notice will also announce the dates during which interested parties may submit their auction applications online to Somos. In the auction application, an interested party will be required to provide certain information, make certifications, and select the numbers from the available pool on which they are interested in bidding. Once Somos reviews the applications, it will announce the list of complete and incomplete applications. For applications deemed incomplete, applicants will be afforded a second filing ( i.e., resubmission) window to make minor modifications to their auction applications. Applications to which major modifications are made after the deadline for submitting applications will be denied. Major modifications include, but are not limited to: Any changes in the ownership of the applicant that constitute an assignment or change of control of the applicant; changes to any certifications required in the application; or changes to the toll free numbers selected in the application or to the parties for which an applicant is bidding.

8. All interested parties will also need to submit an upfront payment, the amount of which will determine the number of 833 numbers they can bid on during the auction. Following the resubmission filing window and the submission of upfront payments, Somos will announce the list of qualified bidders (based on the list of complete applications and sufficient upfront payments).

9. The 833 Auction will consist of a single round of bidding. Bidders will upload their bid information online through the Somos bidding system. After completion of the single round, Somos will announce the winning bidders for each number and establish the deadline for making final payments. Any winning bidder that is not a RespOrg must then work with a RespOrg after the auction to reserve the number in the Service Management System Database (Toll Free Database) in accordance with the Commission's rules.

10. Because the Commission expects that the 833 Auction will attract parties that have never participated in a Commission auction, it directs Somos to provide additional information on the application and bidding systems. This information should include, but is not limited to, demonstrations and other educational and hands-on practice opportunities that potential bidders can use to familiarize themselves with the application and bidding systems. For example, for recent spectrum license and universal service support auctions, the Commission has released an online tutorial that serves to help applicants understand auction application filing procedures. Are there any other specific types of educational and hands-on practice opportunities that potential bidders in this context would find helpful?

11. In the Toll Free Assignment Modernization Order, the Commission established certain principles to (1) promote the transparency and efficiency of the 833 Auction, and (2) reduce the instances of conflicts of interest and the likelihood of anticompetitive strategic behavior by participants. The Commission seeks comment on specific procedures to implement these principles.

12. In the Toll Free Assignment Modernization Order, the Commission decided it would allow potential subscribers the option to participate directly in the 833 Auction or indirectly through a RespOrg. The Commission also required that potential subscribers participate in the 833 Auction through only a single auction applicant ( i.e., either on its own behalf or through a RespOrg). The Commission further held that a potential subscriber may not engage multiple applicants to bid on its behalf.

13. To enforce these mandates and to help prevent possible collusion, the Commission proposes that a potential subscriber can participate in the 833 Auction either (1) through a RespOrg that will bid on all the numbers in which the subscriber is interested in acquiring, or (2) by submitting its own application and bidding for all the numbers in which it is interested. Thus, a potential subscriber could not selectively choose to be represented by a RespOrg for some numbers and submit an application on its own for other numbers. This proposed application restriction is consistent with the requirement that a potential subscriber may participate through only a single auction applicant and is necessary to prevent collusion among applicants. Additionally, the Commission proposes that the auction application require that each applicant certify that (1) if it is bidding on its own behalf, it is also not participating in the auction through another entity, and/or (2) if it is bidding on behalf of potential subscriber(s) that it is not aware that the potential subscriber(s) are participating through another applicant. The Commission seeks comment on these proposals.

14. In the Toll Free Assignment Modernization Order, the Commission also prohibited a single party, or multiple parties with a controlling interest in common, from becoming qualified to bid in the 833 Auction based on multiple applications. Based on that restriction, the Commission proposes to require an applicant certify that it, or any commonly-controlled entity, is not submitting multiple applications in the 833 Auction.

15. The Toll Free Assignment Modernization Order also stated that, to define parties with common controlling interests in the pre-auction process, the Commission anticipates using definitions adopted for similar purposes in its spectrum auctions. The Commission believes this approach has the benefit of ample precedent and, therefore, it proposes to define a “controlling interest” for purposes of identifying commonly controlled entities in the 833 Auction as an individual or entity with positive or negative de jure or de facto control of the applicant. De jure control includes holding 50 percent or more of the voting stock of a corporation or holding a general partnership interest in a partnership. Ownership interests that are held indirectly by any party through one or more intervening corporations may be determined by successive multiplication of the ownership percentages for each link in the vertical ownership chain and application of the relevant attribution benchmark to the resulting product, except that if the ownership percentage for an interest in any link in the chain meets or exceeds 50 percent or represents actual control, it may be treated as if it were a 100 percent interest. De facto control is determined on a case-by-case basis. Examples of de facto control include constituting or appointing 50 percent or more of the board of directors or management committee; having authority to appoint, promote, demote, and fire senior executives that control the day-to-day activities of the entity; or playing an integral role in management decisions.

16. The Commission also seeks comment on a presumption that spouses own or control or have the power to control interests owned or controlled by either of them and a presumption that immediate family members own or control or have the power to control interests owned or controlled by other immediate family members. In this context “immediate family member” would mean father, mother, husband, wife, son, daughter, brother, sister, father- or mother-in-law, son- or daughter-in-law, brother- or sister-in-law, step-father or -mother, step-brother or -sister, step-son or -daughter, half brother or sister. The Commission proposes to place the burden on applicants to sufficiently demonstrate that spouses or family members should not be treated as having an identity of interest such that it creates common control. The Commission proposes that where the presumption has not been adequately rebutted, such spouses and family members will be subject to the prohibition on submission of multiple auction applications by commonly controlled entities. The Commission seeks comment on these proposals.

17. In the Toll Free Assignment Modernization Order, the Commission indicated that any 833 Auction applicants that have overlapping non-controlling interests must take steps to prevent communicating bid information. Specifically, the Commission required applicants with overlapping non-controlling interests to certify they have established internal controls to preclude any person acting on behalf of an applicant from possessing information about the bids or bidding strategies of more than one applicant, or communicating such information to another person acting on behalf of and possessing such information regarding another applicant. Thus, the Commission plans to include such a certification in the auction application.

18. In the Toll Free Assignment Modernization Order, the Commission stated that, for the 833 Auction, there should be a prohibition on certain communications similar to the prohibition that applies in the Commission's spectrum license and universal service support auctions. Specifically, in those auctions, applicants are prohibited from communicating certain auction-related information to other applicants beginning on the auction application filing deadline and concluding upon a specific post-auction deadline for winning bidders ( e.g., the down payment deadline or deadline to file long-form applications). This prohibition on certain communications is intended to reinforce existing antitrust laws, facilitate detection of collusive conduct, and deter anticompetitive behavior.

19. The Commission proposes that each applicant in the 833 Auction will be prohibited from cooperating or collaborating with any other applicant with respect to its own, or one another's, or any other competing applicant's bids or bidding strategies. Further, an applicant will be prohibited from communicating, with any other applicant in any manner, the substance of its own, or one another's, or any other competing applicant's bids or bidding strategies (including with respect to the post-auction market for toll free numbers). The proposed prohibition will begin at the deadline for submitting auction applications and will end at the post-auction deadline for winning bidders to submit their final payments (which will be announced by Somos after bidding concludes). The proposed prohibition will not apply to all communications between or among applicants; it would apply only to any communications conveying, in whole or part, directly or indirectly, the applicant's or a competing applicant's bids or bidding strategy (including with respect to the post-auction market for toll free numbers). The Commission seeks comment on these proposals.

20. Moreover, as the Commission does in spectrum license and universal service support auctions, it proposes to define “applicant” broadly for purposes of this prohibition. The Commission proposes that “applicant” for purposes of the prohibition on certain communications for the 833 Auction includes: All controlling interests in the entity submitting the auction application; all holders of partnership and other ownership interests and any stock interest amounting to 10% or more of the entity, or outstanding stock, or outstanding voting stock of the entity submitting the auction application; all officers and directors of that entity; and any entity listed as a potential subscriber on whose behalf the entity submitting the auction application will be bidding. The Commission seeks comment on this proposal.

21. Finally, to implement the prohibition of certain communications, the Commission proposes to require an applicant that makes or receives a prohibited communication to report such communication to the Commission and Somos staff immediately, and in any case no later than five business days after the communication occurs. The Commission also proposes to rely to the extent appropriate on past precedent and guidance regarding its rules on prohibited communications in connection with its spectrum auctions. The Commission seeks comment on these proposals.

22. The Commission proposes to prohibit certain agreements among applicants (whether the applicants are RespOrgs or potential subscribers) in the 833 Auction. The prohibition would apply to any agreements, arrangements, or understandings of any kind relating to the toll free numbers being auctioned to which the applicant, or any party that controls or is controlled by the applicant, is a party. This includes any agreements that address or communicate directly or indirectly bids (including specific prices), bidding strategies (including the specific numbers on which to bid or not to bid), or the post-auction market for toll free numbers. Similar to the Commission's proposed prohibition on certain communications, it proposes to define “applicant” for these purposes broadly. The Commission seeks comment on these proposals.

23. This proposed prohibition would not apply to agreements unrelated to the toll free numbers being offered in the 833 Auction. Business discussions and negotiations that are unrelated to bidding in the 833 Auction and that do not convey information about the numbers being auctioned or bidding strategies would not be prohibited. Moreover, not all auction-related information would be covered by the prohibition. For example, communicating merely whether a party has or has not applied to participate in the 833 Auction would not violate the proposed rule. In contrast, communicating how a party will participate, including specific numbers or bid amounts, would convey bid or bidding strategies and would be prohibited under the proposed rule.

24. Given RespOrgs' dominant position in the toll free number market, the Commission proposes to prohibit certain auction-related agreements among RespOrgs even where only one of the RespOrgs is an applicant in the 833 Auction. Thus, an applicant RespOrg would be prohibited from having an agreement related to the toll free numbers being offered in the 833 Auction with a non-applicant RespOrg. Similar to the proposed prohibition on agreements among applicants, this proposed prohibition between applicant RespOrgs and non-applicant RespOrgs would not apply to agreements unrelated to the toll free numbers being offered in the 833 Auction. Thus, business discussions and negotiations that are unrelated to bidding in the 833 Auction and that do not convey information about the numbers being auctioned or bidding strategies would not be prohibited.

25. This proposed prohibition would not apply to RespOrgs that are commonly controlled. Commonly-controlled entities are those in which the same individual or entity either directly or indirectly holds a controlling interest (as determined by positive or negative de jure or de facto control). When RespOrgs share a common officer or director or control, the Commission presumes that bids and bid strategies will be communicated. Moreover, the Toll Free Assignment Modernization Order stated that commonly controlled RespOrgs cannot submit multiple applications to participate in the 833 Auction. Instead, the commonly controlled RespOrgs would need to choose one of the entities to be the applicant and disclose the existence of the other commonly controlled RespOrgs in the application. The Commission seeks comment on these proposals.

26. The Toll Free Assignment Modernization Order allowed potential subscribers to participate directly in the 833 Auction or indirectly through a RespOrg. Given the unique position of RespOrgs participating on their own behalf or bidding on behalf of other entities, the Commission proposes to require any applicant RespOrg that bids for a potential subscriber to acquire a letter of authorization from the potential subscriber. Somos, as the Toll Free Numbering Administrator, currently requires RespOrgs to present similar letters of authorization when a subscriber changes RespOrgs. The Commission proposes that the letter of authorization to represent the subscriber in the 833 Auction should be substantially the same— i.e., identifies the parties and toll free number(s), and includes a signed and dated authorization. The Commission seeks comment on this proposal and on whether to require the applicant RespOrg to provide the letter of authorization as part of its auction application ( e.g., to upload it as an attachment) or to simply allow the applicant RespOrg to certify that it is in possession of the letter and be able to produce it to the Commission if requested.

27. The Commission emphasizes that any RespOrg that applies to participate in the 833 Auction, including a RespOrg participating on behalf of one or more potential subscribers, assumes a binding obligation to pay its full winning bid amount, and is responsible for complying with all post-auction requirements, regardless of whether a potential subscriber on whose behalf the RespOrg bid fulfills its financial or contractual obligation to the RespOrg. While an applicant RespOrg may seek reimbursement from the potential subscriber for which it bid, the RespOrg—as the bidder in the auction—is ultimately responsible for full payment of any winning bid.

28. Any party interested in obtaining an 833 number available through the auction must submit an auction application to become qualified to bid in the 833 Auction. The Commission proposes that, as a first step in the application process, an interested party must acquire an “Auction ID” from Somos, which will verify the potential applicant's identity. Moreover, the Commission proposes that any entity that cannot be verified through the Somos verification process must then participate through a RespOrg ( i.e., the RespOrg will bid on its behalf and will be responsible for making final payment on any winning bids). The Commission seeks comment on these proposals.

29. In the Toll Free Assignment Modernization Order, the Commission established general principles governing the information that must be provided in the auction application. The Commission now seeks comment on specific application requirements consistent with the principles of (1) promoting the transparency and efficiency of the auction, and (2) reducing the instances of conflicts of interest and the likelihood of undesirable and/or anticompetitive strategic behavior by participants.

30. The Commission proposes that an applicant in the 833 Auction must identify, in its auction application, each toll free number (from the list of available 833 numbers) on which it may wish to place a bid during the auction, and the party for which it is bidding for each number. If qualified to bid in the auction, the entity will not be obligated to place a bid on each of the numbers selected in its application, but an entity will not be able to bid on any numbers that it does not select in its application. If a particular available toll free number is not selected on any auction application, it will not be available in the auction. The Commission further proposes that any changes made to the numbers selected on an application will be considered a major modification of the application, which will result in a dismissal of the application. The Commission seeks comment on these proposals. The Commission also notes that there is no limit to how many numbers for which an entity can place a bid. Given that there are over 17,000 possible numbers, are there any special considerations that the Commission (or Somos) should account for in the item and entity selection process?

31. In addition, in the Toll Free Assignment Modernization Order, the Commission stated that each auction participant will be required to certify, as applicable, that it is not bidding on behalf of multiple interested parties (including itself) for the same toll free numbers or that each interested party is bidding through one entity for a given number. To implement this prohibition, the Commission stated that it expects that an applicant will need to disclose each party on whose behalf it is bidding, for each toll free number that it selects. Requiring an applicant to identify the party for which it is bidding will allow Somos to verify that a potential subscriber is seeking to bid based on only one application and will make it clear to applicants that they can represent only one entity per number. Thus, the Commission proposes that, for each number on which an applicant wishes to be able to bid, it must identify the party (either itself or another entity) for which it is bidding. The Commission also proposes that any changes made on an application regarding the disclosure of the party for which an applicant is bidding will be considered a major modification of the application, which will result in application dismissal. The Commission seeks comment on these proposals.

32. Moreover, the Commission proposes that, while the 833 numbers selected by an applicant will not be made public until after the bidding is complete, the party for which an applicant is bidding will be made public once Somos announces which applications are compete or incomplete ( i.e., when most auction application information typically becomes public in a Commission auction). The Commission seeks comment on this proposal.

33. In the Toll Free Assignment Modernization Order, the Commission stated that it expected that any entity wishing to participate in the 833 Auction would have to fully disclose information regarding the real party or parties-in-interest in the applicant or application and the ownership structure of the applicant, including both direct and indirect ownership interests of 10% or more. Requiring applicants' ownership information provides several benefits. First, it promotes auction transparency by providing insight—to the Commission, Somos, other bidders, and the public—into the entities participating in the auction. Second, it provides information to help bidders comply with the prohibition on certain communications. Third, it provides information to the Commission and Somos to enforce the restrictions against multiple applications, including prohibiting commonly-controlled entities from submitting separate applications.

34. The Commission proposes to require applicants in the 833 Auction to provide the same level of ownership disclosure required in Commission spectrum auctions—namely, section 1.2112(a) of the Commission's rules. Specifically, the Commission proposes that applicants in the 833 Auction must disclose: (1) The real party or parties in interest of the applicant or of the application; (2) any direct interest holder of 10% or greater; (3) any indirect interest holder of 10% or greater; and (4) any FCC-regulated entity or applicant for an FCC license in which the applicant, or any direct interest holder of 10% or greater, owns 10% or more stock, whether voting or non-voting. The Commission seeks comment on this proposal.

35. To the extent that an applicant may be a party to a permitted auction-related agreement, the Commission proposes that an applicant must disclose the agreement on its auction application. Specifically, the Commission proposes that an applicant must disclose any agreement related to the numbers being auctioned, including the names of the parties to the agreement(s).

36. In Commission spectrum license and universal service support auctions, where certain agreements are allowed, the applicant must disclose certain limited information about the agreements in their pre-auction short-form applications ( e.g., the parties to the agreement and a brief summary of the agreements), while winning bidders often may be required to provide more detailed information about the agreements in their post-auction long-form applications. Since there will be no long-form application following the 833 Auction, the Commission seek comment on whether the limited information normally provided in the short-form application ( i.e., names of the parties to the agreement and a brief description of the agreement) is sufficient for the 833 Auction.

37. The Commission stated in the Toll Free Assignment Modernization Order that it would also require applicants in the 833 Auction to provide additional information and make additional certifications in the application, as may be found in the pre-auction process to be necessary to implement the Commission's decisions in that order. Based on this, the Commission proposes to require each to certify that it is not currently in default or delinquent on a non-tax debt to the Federal government, as is the Commission's practice in its spectrum auctions, in order to preserve the integrity of the auction process and to ensure that bidders are capable of meeting their financial commitments. Under this proposal, the applicant's status as a current defaulter will be determined as of the auction application deadline. The Commission seeks comment on this proposal, and also encourages prospective applicants to pay any delinquent debts prior to the auction application deadline. After the deadline, an applicant can dispute the status of the debt, but consistent with the Commission's practice in spectrum auctions, applicants will not be able to cure the default or delinquency after the auction application deadline to participate in the auction.

38. The Commission also asks if there are other certifications that it should consider requiring auction applicants to make in order to become qualified to bid in the 833 Auction? Are there any legal restrictions that may be relevant in the 833 Auction, as in Commission spectrum auctions, limiting participation based on a prior bar against participating in such an auction?

39. The Commission decided in the Toll Free Assignment Modernization Order that the 833 Auction will be conducted as a single round, sealed-bid auction, in which bidders submit their bids for individual numbers simultaneously, with the winning bid for each number determined solely by bids for that number, independent of the bids for any other number. Moreover, the Commission also chose to use a Vickery auction, in which the amount paid by the winning bidder is determined by the second-highest bid. Therefore, in the 833 Auction, the winning bidder for each 833 number will be the bidder with the highest bid and will pay the second-highest bid amount for that number.

40. In the event that a toll free number receives only one bid, the Commission proposes that the toll free number will be awarded to the bidder placing the sole bid. Consistent with a Vickery auction, the Commission further proposes that the bidder in that case would acquire the right to use the number and not be required to pay anything because there was no second-highest bid. The Commission seeks comment on this proposal.

41. In the event that a toll free number receives two or more tied amounts for the highest bid, the Commission proposes that the winning bidder will be determined by use of a pseudo-random number. The Commission proposes that Somos assign the pseudo-random number to each bid for each toll free number submitted to the 833 Auction. Moreover, because the Commission required the 833 Auction to be a Vickery auction where the winning bidder pays the second highest bid ( i.e., the value that the second highest bidder attached to the toll free number), it proposes that, in the case of tied bids, the winning bidder would still pay the second highest bid, which would be the same amount as its placed bid. The Commission seeks comment on this proposal.

42. Consistent with the procedures in many recent Commission auctions, the Commission proposes that Somos conduct the 833 Auction using procedures for limited information disclosure (sometimes also referred to as anonymous bidding). The Commission proposes that Somos withhold, until after the close of bidding and announcement of auction results, the public release of bidders' particular 833 number selections and any information that may reveal the identities of bidders placing bids and taking other bidding-related actions. More specifically, the Commission proposes to not make public until after bidding has closed: (1) The numbers that an applicant selects for bidding in its auction application, (2) the amount of any upfront payment made by or on behalf of an applicant for the 833 Auction, (3) any applicant's bidding eligibility, and (4) any other bidding-related information that might reveal the identity of the bidder placing a bid. Once Somos has performed an initial review of the auction applications and announced which are complete or incomplete, the Commission proposes that Somos will make public the information contained in the application except the toll free numbers that an applicant selects for bidding. This includes the names of any potential subscribers for which an applicant RespOrg is bidding.

43. Because the 833 Auction will be conducted using a single round of bidding, the Commission does not anticipate that there will be the same need for release of bidding-related actions during the auction that there would be in a multiple-round auction. If such circumstances were to arise prior to the release of non-public information and auction results, however, the Commission's proposal would mean that it would not indicate the identity of any bidders taking such actions. After the close of bidding, bidders' number selections, upfront payment amounts, bids, and any other bidding-related actions and information will be made publicly available. The Commission seek comment on these proposals.

44. The Commission expects Somos to conduct the auction online. The single-round format will consist of one bidding round, which will occur on one day. While the Commission expects the bidding round to be open for several hours, it proposes that Somos, in consultation with the Commission, will announce the actual start and finish time of the bidding round at least one week before the start of the auction. This approach should provide certainty to the bidders, while providing Somos with flexibility. The Commission seeks comment on this proposal.

45. For the 833 Auction, the Commission proposes that, by public notice or by announcement during the auction, the Commission, or Somos in consultation with the Commission, may delay or suspend the auction in the event of a natural disaster, technical failures, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, Somos would seek guidance from the Commission about resuming, rescheduling, or canceling the auction in its entirety. If the bidding is delayed or suspended, the Commission may direct Somos to resume the auction starting from the beginning of the scheduled bidding round or for a shorter period, or cancel the auction in its entirety. The Commission will exercise this authority solely at its discretion. It seeks comment on this proposal.

46. The Commission proposes that potential bidders must provide an upfront payment of $100 per number to participate in the 833 Auction. Upfront payments help ensure that only serious qualified bidders participate in an auction and provide a source of available funds in the event a penalty must be assessed for an auction default. In the Toll Free Assignment Modernization Order, the Commission chose to require upfront payments in the 833 Auction but deferred to the pre-auction process what the upfront payments should be, though it stated that it generally expected the approach to be modeled on those used in the Commission's spectrum auctions.

47. In determining the amount of upfront payment required in spectrum license auctions, the Commission has balanced “the goal of encouraging bidders to submit serious, qualified bids with the desire to simplify the bidding process and minimize implementation costs that will be imposed on bidders.” At this point, the Commission has little information about the value of the toll free numbers being auctioned—in fact, one of the goals of the 833 Auction is to help inform the Commission on the value of the available toll free numbers. Moreover, the Commission does not wish to discourage participation of sincere bidders. Therefore, it proposes to require an upfront payment of $100 per number. Such an amount should begin to cover the costs of auctioning the numbers in the event a bidder defaults and, thus, best achieve the Commission's goals in requiring an upfront payment while burdening bidders the least. The Commission seeks comment on its proposal, and on any other alternative upfront payment amounts or proposals.

48. Applicants for the 833 Auction will need to submit an upfront payment sufficient to be able to bid on the total number of toll free numbers for which they wish to submit bids. Thus, an applicant may select on its auction application more of the available 833 numbers than the total for which it expects to submit bids, but its actual bidding will be limited by the amount of its upfront payment. For example, if an applicant were to select 50 numbers on its application but submits an upfront payment of only $1,000, it would be able to place bids on only 10 numbers (based on the proposed upfront payment of $100 per number).

49. Moreover, given that some participants in the 833 Auction may not be familiar with auctions generally, the Commission emphasizes that, if a winning bid is less than the bidder's upfront payment, any remaining amount will be refunded to the bidder, minus any default payments that a bidder might owe. Similarly, if a bidder does not have any winning bids, it will be reimbursed the entirety of its upfront payment.

50. Additionally, for applicant RespOrgs who are bidding on behalf of potential subscribers, the Commission proposes that all funds that a RespOrg submits as an upfront payment in the auction (regardless of whether the funds came from the RespOrg or a potential subscriber for which the RespOrg is bidding) will be considered the upfront payment of the RespOrg applicant and will be used to offset the final payment obligation for any winning bids of the RespOrg, regardless of which 833 numbers the RespOrg wins. It would be the responsibility of a RespOrg and potential subscriber for which it will bid to work out their financial arrangements. From the perspective of the auction, however, all upfront payments submitted by an applicant RespOrg would be considered to be payments by the applicant RespOrg and will be applied to offset the final payment obligations for all toll free numbers that the RespOrg wins. The Commission seeks comment on this proposal.

51. The Commission also proposes to require upfront payments of a certain amount be made via wire transfer. Specifically, any upfront payment above $300 must be made through a wire transfer to Somos (or its payment designee). The Commission proposes that any amounts under this threshold ( i.e., $300 or less) can be made using an alternative payment collection process, such as Automated Clearing House (ACH). Such a process may be easier for individuals or small entities that may be interested in only a few toll free numbers. The Commission proposes to specifically exclude payments via check or credit card, as such payment processes have increased risks associated with them, which may not be conducive to a timely auction. The Commission seeks comment on this proposal and alternative thresholds.

52. The Commission proposes to allow bids only in whole dollar amounts. It seeks comment on this proposal.

53. Each bid is a binding commitment. If a bidder fails to make full payment on its bid or otherwise defaults for any reason, it should be subject to a default payment. The Commission explained in the Toll Free Assignment Modernization Order that it generally expected the approach to default payments in the 833 Auction to be modeled on those used in the Commission's spectrum auctions. In spectrum auctions, any winning bidder that defaults or is disqualified after the close of an auction is liable for a default payment that consists of a deficiency payment and an additional payment. The deficiency payment is generally equal to the difference between the amount of the defaulted bid and the amount of the winning bid in a subsequent auction. The additional payment is a percentage of the defaulter's bid or of the subsequent winning bid, whichever is less. The additional payment percentage is established by the Commission in advance of the auction and is generally between 3% and 20% of the applicable bid. Since the 833 Auction is an experiment, the Commission has not yet decided if there will be a subsequent auction of toll free numbers. Therefore, it proposes that the default payment in the 833 Auction will not include a deficiency payment, but rather will be based only on a percentage of the defaulted bid. Because there will be no deficiency payment, the Commission proposes to set the default payment requirement in the 833 Auction at a higher percentage of the defaulted bid than the additional payments it requires for defaults in its spectrum auctions. The Commission believes that a higher percentage will adequately compensate for the absence of a deficiency payment and sufficiently discourage insincere bidding and default. Accordingly, the Commission proposes that the default payment should be 35% of the defaulted bid amount. The Commission seeks comment on this proposal, and any alternatives.

54. Shortly after the single round of bidding for the 833 Auction is complete, Somos will announce the winning bidders through a public notice. The Commission proposes that each winning bidder must submit the full payment for its winning bid(s) within 10 business days following release of the public notice announcing the winning bidders. Similar to the final payment procedures in its spectrum auctions, the Commission also proposes to allow a winning bidder to make its final payment within five additional business days after the applicable deadline, provided it also pays a late fee of 5% of the winning bid. The Commission proposes that, if a winning bidder misses the final payment deadline and also fails to remit the required payment (plus the applicable late fee) by the end of the late payment period, it would be declared in default and subject to the applicable default payment. The Commission seeks comment on this proposal.

55. Similar to its proposal for upfront payments, the Commission proposes to require final payments of a certain amount be made via wire transfer. Specifically, any final payment above $300 must be made through a wire transfer to Somos (or its payment designee). The Commission proposes that any amounts under this threshold ( i.e., $300 or less) can be made using an alternative payment collection process, such as ACH. Such a process may be easier for individuals or small entities that may be interested in only a few toll free numbers. The Commission proposes to specifically exclude payments via check or credit card, as such payment processes have increased risks associated with them, which may not be conducive to a timely auction. The Commission seeks comment on this proposal and alternative thresholds.

56. The Toll Free Assignment Modernization Order required any potential subscriber that directly participates in the 833 Auction and is a winning bidder to work with a RespOrg after the auction to reserve a number in the Toll Free Database in accordance with section 52.101 of the Commission's rules. The Commission proposes that, under such circumstances, the potential subscriber must declare which RespOrg it plans to use within 15 business days after the public notice announcing the winning bidders. The Commission further proposes that subscribers may report any problems working with RespOrgs after the auction to Somos, which will hold the number while these issues are resolved. The Commission proposes to entertain waivers of the 15 business day deadline, consistent with its existing waiver standard, where a subscriber's late declaration was due to no fault of its own. The Commission seeks comment on these proposals.

57. In the Toll Free Assignment Modernization Order, the Commission adopted an exception to the rules prohibiting the brokering, hoarding, and warehousing of toll free numbers for numbers acquired in an auction. Consistent with the goal of the 833 Auction—assigning toll free numbers to those who can put them to their best use—the Commission adopted this exception to promote the development of a secondary market for numbers assigned via competitive bidding. In order to evaluate the operation of this new secondary market, the Toll Free Assignment Modernization Order directed Somos “to maintain data on secondary market transactions and make that data available to the Commission.”

58. The Toll Free Assignment Modernization Order established that the data collected include “the new subscriber's name and contact information, and other limited information Somos deems necessary.” To further the Commission's evaluation of the secondary market, it proposes that Somos collect additional limited information beyond that identified in the Toll Free Assignment Modernization Order. Specifically, the Commission proposes that Somos collect the following information: (a) Contact information of both parties to the transaction, including (i) name, (ii) address, (iii) email address, and (iv) phone number; (b) sale price; and (c) sale date. This information should allow the Commission to fully evaluate the operation of the secondary market, including the demand for the right to use toll free numbers, the value parties place on the right to use toll free numbers, and how frequently transactions occur on the secondary market. The Commission seeks comment on this proposal.

59. The Toll Free Assignment Modernization Order also established that RespOrgs are obligated to provide information to Somos to facilitate the collection of data about secondary market transactions. To incentivize RespOrgs to provide this information promptly, the Commission proposes that RespOrgs must submit all required data about post-auction secondary market transactions involving their subscribers to Somos within 60 days of the transaction. The Commission proposes that this requirement be included in Somos's tariff and that, like other violations of RespOrg requirements in the tariff, noncompliance be penalized by discontinuing access to the Toll Free Database until the required data is reported. The Commission believes that 60 days from the date of a transaction is a reasonable amount of time for a RespOrg to discover and report transaction data to Somos. Even if a subscriber does not inform a RespOrg of a transaction, 60 days provides a RespOrg with two monthly billing cycles during which it should be aware of a subscriber change. And if a RespOrg discovers a transaction but the subscriber does not provide it with information about the transaction, the Commission proposes allowing the RespOrg to withhold service from the subscriber until it receives the necessary information. The Commission also believes that the penalty of discontinued access to the Toll Free Database—until the required data is reported—appropriately balances its dual goals of incentivizing compliance while not discouraging RespOrgs who fail to report transaction data from correcting a good faith oversight. The Commission seeks comment on this proposal.

60. As required by the Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared a Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in 833 Auction Comment Public Notice to supplement the Commission's Initial and Final Regulatory Flexibility Analyses completed in the Toll Free Assignment Modernization Order pursuant to which the 833 Auction will be conducted. Written public comments are requested on the Supplemental IRFA. Comments must be identified as responses to the Supplemental IRFA and must be filed by the same deadline for comments on the proposals in the Public Notice. The Commission will send a copy of the Public Notice, including the Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Public Notice and Supplemental IRFA (or summaries thereof) will be published in the Federal Register .

61. Need for, and Objectives of, the Proposed Rules. To further the goal of an efficient, fair and orderly allocation of toll free numbers to all potential subscribers, including small entities, the Commission added competitive bidding as a method to assign toll free numbers and established the 833 Auction as an experiment in that approach. The Public Notice seeks comment on proposed procedural rules to govern the 833 Auction. The process is intended to provide notice of, and adequate time for, potential applicants to comment on proposed auction procedures. An efficient and fair administration of the competitive bidding process will benefit all 833 Auction participants, including small entities. To that end, the Commission seeks comment on the following proposed procedures: (1) Allow potential subscribers to participate in the 833 Auction either through a RespOrg that will bid on all the numbers in which the subscriber is interested in acquiring, or by submitting its own application and bidding for all the numbers in which it is interested; (2) require each applicant in the 833 Auction to certify that (i) if it is bidding on its own behalf, it is also not participating in the auction through another entity and/or, if it is bidding on behalf of potential subscribers that it is not aware that the potential subscriber(s) are participating through another applicant; and (ii) it, or any commonly-controlled entity, is not submitting multiple applications in the 833 Auction, utilizing the Commission's definitions for control adopted for similar purposes in its spectrum auctions; (3) prohibit each applicant in the 833 Auction from cooperating or collaborating with any other applicant with respect to its own, or one another's, or any other competing applicant's bids or bidding strategies, and will be prohibited from communicating with any other applicant in any manner the substance of its own, or one another's, or any other competing applicant's bids or bidding strategies (including the post-auction market for toll free numbers); (4) prohibit certain agreements between applicants (whether the applicants are RespOrgs or potential subscribers) in the 833 Auction, and certain auction-related agreements among RespOrgs even where only one of the RespOrgs is an applicant in the 833 Auction; (5) require any applicant RespOrg that bids for a potential subscriber to acquire a letter of authorization from the potential subscriber; (6) require applicants to first acquire an “Auction ID” from Somos, which will verify the potential applicant's identity, and if any entity cannot be verified through the Somos verification process, it must then participate through a RespOrg; (7) require each applicant, on its auction application, (i) identify each number on which it wishes to be able to bid and, for each number, the party (either itself or another entity) for which it is bidding, (ii) provide the same level of ownership disclosure required in Commission auctions, (iii) disclose any auction-related agreement, and (iv) certify that it is not currently in default or delinquent on a non-tax debt to the Federal government; (8) for determining the winning bidder on tied bids for a toll free number, use a pseudo-random number assigned to each bid; and for an only bid received for a toll free number, assign the sole bidder the number and require no payment; (9) conduct the 833 Auction using procedures for limited information disclosure; (10) require potential bidders provide an upfront payment of $100 per number, and treat all funds that a RespOrg submits as an upfront payment in the auction (regardless of whether the funds came from the RespOrg or a potential subscriber for which the RespOrg is bidding) as the upfront payment of the RespOrg that will be used to offset the final payment obligation for any winning bids of the RespOrg; (11) default payment of 35% of the defaulted bid; (12) full payment within 10 business days following release of the public notice of the winning bids, or full payment plus a 5% late fee, within five additional business days; (13) require any potential subscriber that directly participates in the 833 Auction and is a winning bidder to declare its intent to work with a specific RespOrg within 15 business days following release of the public notice of winning bids; and (14) require Somos to collect additional information on secondary markets and require RespOrgs submit all required data about post-auction secondary market transactions within 60 days of a transaction.

62. Legal Basis. The Commission has a statutory obligation under section 251(e)(1) of the Communications Act of 1934, as amended (the Act), “to ensure that toll free numbers, which are a scarce and valuable national public resource, are allocated in an equitable and orderly manner that serves the public interest.” Pursuant to this statutory mandate, the Commission has the “authority to set policy with respect to all facets of numbering administration in the United States,” and a “require[ment] . . . to ensure the efficient, fair, and orderly allocation of toll free numbers.” The proposed auction procedures and secondary market proposals in the Public Notice further the statutory requirement that numbers be made “available on an equitable basis”—an auction and secondary market are both efficient and orderly, and fair. These actions benefit all auction participants and toll free number subscribers, including small entities. In addition, the proposed requirements for Somos to follow as the auctioneer for 833 numbers are supported under the Commission's obligation in section 251(e)(1) to ensure its Toll Free Numbering Administrator administers “telecommunications numbering and to make such numbers available on an equitable basis,” and section 201(b)'s authorization for the Commission to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this [Act].” These actions will help ensure an efficient and orderly, and fair, assignment of toll free numbers.

63. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

64. In the FRFA incorporated into the Toll Free Assignment Modernization Order, the Commission described in detail the small entities that might be significantly affected. In the Public Notice, the Commission incorporates by reference the descriptions and estimates of the number of small entities from the previous FRFA in the Toll Free Assignment Modernization Order in WC Docket No. 17-192.

65. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities. The Commission designed the auction application process itself to minimize reporting and compliance requirements for applicants, including small business applicants. Parties desiring to participate in the 833 Auction must file an application in which they certify under penalty of perjury as to their qualifications. Eligibility to participate in bidding is based on an applicant's auction application and certifications, as well as its upfront payment. The Commission decided in the Toll Free Assignment Modernization Order that it will not require applicants to submit a long-form application after the conclusion of the 833 Auction, given the lack of need to verify winning bidders' qualifications in this context and to limit the administrative burden on bidders, including small business entities.

66. Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

67. In the Toll Free Assignment Modernization Order, the Commission concluded that assigning toll free numbers through competitive bidding will benefit smaller entities, particularly when compared with the prior first-come, first-served assignment methodology, which favored larger, more sophisticated entities that had invested in systems that provided enhanced connectivity to the Toll Free Database). Moreover, the Commission also elected to allow potential subscribers, many of which may be smaller entities, the choice between participating directly in the auction or indirectly through a RespOrg.

68. The Commission intends that the proposals of the Public Notice to facilitate participation in the 833 Auction will result in both operational and administrative cost savings for small entities and other auction participants. In light of the numerous resources that will be available from the Commission and Somos at no cost, the processes and procedures proposed for the 833 Auction in the Public Notice should result in minimal economic impact on small entities. For example, prior to the auction, small entities and other auction participants may seek clarification of or guidance on complying with competitive bidding rules and procedures, reporting requirements, and the bidding system. Small entities as well as other auction participants will be able to avail themselves of web-based, interactive online tutorials to familiarize themselves with auction procedures, filing requirements, bidding procedures, and other matters related to the 833 Auction and hotlines to assist with issues such as access to or navigation within the electronic auction application system. The Commission also makes copies of Commission decisions available to the public without charge, providing a low-cost mechanism for small businesses to conduct research prior to and throughout the auction. In addition, Somos will post public notices on its website will make this information easily accessible and without charge to benefit all 833 Auction applicants, including small businesses. These steps are made available to facilitate participation in the 833 Auction by all eligible bidders and may result in significant cost savings for small business entities who utilize these alternatives. Moreover, the adoption of bidding procedures in advance of the auction is designed to ensure that the 833 Auction will be administered predictably and fairly for all participants, including small businesses.

69. The proposed procedures for the conduct of the 833 Auction constitute the more specific implementation of the competitive bidding rules contemplated by Part 1 of the Commission's rules and the underlying rulemaking orders, including the Toll Free Assignment Modernization Order and relevant competitive bidding orders, and are fully consistent therewith.

70. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules. None.

71. This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations must file a copy of any written presentations or memoranda summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine Period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to the Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

This Advance Notice of Proposed Rulemaking (ANPRM) is a continuation of NHTSA's efforts to gather input from stakeholders and the public regarding what approaches to propose to address potential challenges to the verification of the compliance with the Federal Motor Vehicle Safety Standards (FMVSSs) of Automated Driving System-Dedicated Vehicles (ADS-DVs)  1 that lack traditional manual controls, but have traditional seating configurations. In this document, the agency first discusses the types of barriers posed by the existing crash avoidance standards and, second, what types of test methods could be employed to test vehicles that lack traditional controls. NHTSA believes that safety should be the preeminent consideration when evaluating whether and how the test methods discussed in this document could be used to address regulatory barriers to ADS-DVs. NHTSA notes that the focus of this document is ADS-DVs, and that the agency is not at this time considering changing the applicability of current requirements to traditional vehicles.

Comments are requested on these approaches and specifically on their feasibility and permissibility as additions to relevant crash avoidance FMVSSs.

To address barriers posed by the rest of the FMVSSs, NHTSA intends to issue two additional documents, one for the crashworthiness FMVSSs (200-series standards) and another for telltales, indicators, and warnings.

The development of ADSs brings the possibility of associated reductions in the number of motor vehicle crashes, deaths, injuries, and associated economic costs. This document is one of three documents  2 NHTSA is issuing to begin the development and implementation of a comprehensive strategy to update the FMVSSs to maintain the required performance levels of existing standards for ADS-DVs without traditional manual controls while addressing regulatory barriers to the compliance verification of these vehicles. This ANPRM is intended to solicit focused feedback on the feasibility and permissibility of a number of approaches to addressing the challenges in certifying or verifying compliance to certain crash avoidance (100-series) for ADS-DVs without manual controls. 3

While some ADS-DVs are equipped with manual controls, and thus NHTSA can conduct compliance verification testing of those vehicles using current test procedures, this is not the case with all ADS-DVs. Specifically, this ANPRM focuses on ADS-DVs without traditional manual controls and that may also lack other features intended to facilitate operation of a vehicle by a human driver. NHTSA believes that modifications of the existing regulatory text, including definitions and test methods used to perform some existing 100-series FMVSS compliance tests, may be necessary for the agency to assess the vehicles' compliance with certain existing FMVSS. The agency intends to explore modifications to the standards with a continued focus on safety.

NHTSA notes that some equipment required under the current FMVSSs provide safety benefits beyond what the agency had originally contemplated at the time each FMVSS was promulgated. For instance, while the agency may have established rear visibility mirror performance requirements based on the safety need for a driver's visibility while driving, outside rearview mirrors have come to serve an additional safety function when a vehicle is parked by providing occupants information regarding whether it is safe to exit the vehicle. Such additional safety benefits must be considered in evaluating their continued necessity on an ADS-DV without traditional manual controls.

In this document, NHTSA discusses two potential types of regulatory barriers for ADS-DVs without traditional manual controls, describes a FMVSS that exemplifies each challenge, and presents a brief overview of comments on the request for comment (RFC). The agency also presents and seeks comment regarding the safety impacts of using alternative compliance test verification methods to conduct compliance verification testing for these types of vehicles, assuming that the standards and procedures could be revisited to appropriately ensure the existing standard of performance without requiring, directly or indirectly, manual controls. NHTSA has initiated work in these areas, including an internal evaluation of regulatory requirements as well as an ongoing research project with the Virginia Tech Transportation Institute (VTTI). The agency anticipates significant overlap between the standards identified and discussed in this ANPRM and the provisions and requirements identified by VTTI through its research activity and analysis. The comments received in response to this document will supplement the research to ensure that NHTSA is considering all stakeholders' perspectives when developing proposals to modify the existing FMVSSs.

NHTSA's primary exercise of its regulatory authority under the National Traffic and Motor Vehicle Safety Act, as amended (“Safety Act”), involves the development, establishment, and enforcement of the FMVSSs. 4 FMVSSs, including the tests they specify, must be: Practicable, both technologically and economically; objective, meaning that they must produce identical results when tests are conducted in identical conditions and determinations of compliance must be based on scientific measurements, not subjective opinion; and meet the need for safety. 5 In addition, in issuing a FMVSS, the agency must consider whether the standard is reasonable, practicable, and appropriate for the types of motor vehicles or motor vehicle equipment for which it is prescribed. 6 NHTSA possesses broad general rulemaking authority to issue regulations to assist in implementing the Safety Act. 7

Manufacturers must certify that their motor vehicles comply with all applicable standards before the vehicles can be sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States. 8 Generally speaking, certification to a standard means that the manufacturer, in exercising reasonable care, certifies that the vehicle meets the requirements of that standard, and that if the vehicle were to be tested according to the test procedures contained in the FMVSSs, the vehicle would meet or exceed the level of performance specified in the standard. That is, while NHTSA verifies that vehicles are compliant with the FMVSSs by conducting compliance tests as they are set forth in the FMVSSs and NHTSA's corresponding compliance test procedures, manufacturers are not required to follow the compliance test procedures, and, instead, simply may not certify a vehicle as compliant, if “in exercising reasonable care, the [manufacturer] has reason to know the certificate is false or misleading in material respect.”  9 Absent an exemption or exception, ADS-DVs must comply with all applicable FMVSSs. 10

As the federal agency charged with reducing crashes and deaths and injuries resulting from crashes on the nation's roadways, 11 NHTSA is encouraged by the potential for safety improvements through new ADS technologies being developed by automobile manufacturers and other innovators. NHTSA anticipates that ADS-DVs can serve a vital safety role on the Nation's roads, particularly since human error and choice are critical factors behind the occurrence of a large number of crashes. 12

However, for ADS technologies to develop fully, technological and regulatory barriers must be overcome. NHTSA wants to take this opportunity to reaffirm that, despite the use of the term “regulatory barrier” in this and other future documents, the existing FMVSSs neither have any provisions addressing the self-driving capability of an ADS nor prohibit inclusion of ADS components on a vehicle. Likewise, nothing in those standards poses testing or certification challenges for vehicles with ADSs so long as the vehicles have means of manual control and conventional seating, and otherwise meet the performance requirements of the FMVSSs. Thus, it is a manufacturer's design of a motor vehicle without manual driving controls, design of a motor vehicle with novel seating configurations or orientations, or a covered party's disabling of any part of a device or element of design of a motor vehicle or motor vehicle equipment that is currently in compliance with applicable FMVSSs, that could complicate the compliance of the vehicle to the existing FMVSSs  13 —not solely the inclusion of the hardware and software that make up an ADS. For ADS-DVs not designed to ever be driven by a human, requiring installation of traditional manual controls results in unnecessary design restrictions and regulatory expense.

This ANPRM builds on NHTSA's efforts in recent years to identify and address regulatory barriers to ADS technologies. NHTSA has already taken steps to address technological barriers through the publication of agency guidance to ensure the safe development and deployment of ADS technologies. In September 2017, the DOT released the guidance document Automated Driving Systems 2.0: A Vision for Safety to provide guidance to the public, particularly industry stakeholders and the States. A Vision for Safety discussed 12 priority safety design elements for manufacturers and other innovators involved in ADS development, including vehicle cybersecurity, human machine interface, crashworthiness, consumer education and training, and post-crash ADS behavior. More recently, DOT released Preparing for the Future of Transportation: Automated Vehicles 3.0, a complementary document to the 2017 guidance that introduces guiding principles that will support Departmental programs and policies and describes the DOT's multi-modal strategy to address existing barriers to safety innovation and progress. It also communicates DOT's agenda to the public and stakeholders on important policy issues and identifies opportunities for cross-modal collaboration. DOT's automation principles are: (1) We will prioritize safety; (2) We will remain technology neutral; (3) We will modernize regulations; (4) We will encourage a consistent regulatory and operational environment; (5) We will prepare proactively for automation; and (6) We will protect and enhance the freedoms enjoyed by Americans.

NHTSA has also conducted research activities to help inform its decision-making with regard to identifying and resolving regulatory barriers. NHTSA, in collaboration with the Volpe National Transportation Systems Center, conducted a preliminary report identifying barriers to the compliance testing and self-certification of ADS-DVs without traditional manual controls. In March 2016, that report was published (the “Volpe Report”). 14 The report focused on FMVSS requirements that present barriers to the compliance testing and self-certification of ADS-DVs without traditional manual controls because they refer to a human driver. 15

Based on the Volpe Report findings, in 2017, NHTSA initiated work with VTTI to expand upon the work performed by Volpe by performing analysis and industry outreach to identify potential approaches for addressing compliance verification barriers. 16 Through this contract with NHTSA, VTTI is going beyond the initial work in the Volpe Report and taking a broader look at possible modifications to the current FMVSS regulatory text and test procedures that would both maintain safety and ensure regulatory certainty for manufacturers of ADS-DVs without traditional manual controls. The VTTI project, as currently scoped, is separated into two phases. Phase I, which will include the technical translation of 30 FMVSSs and associated test procedures, concludes by the end of 2019. Phase II, which will focus on the remaining FMVSSs and associated test procedures, is expected to start in 2019 and conclude in mid-2021. These efforts are anticipated to inform NHTSA's decisions on updates to the FMVSSs.

In addition to these research efforts, NHTSA has also requested input from stakeholders through a January 2018 RFC to identify regulatory barriers in the FMVSS to the testing, compliance certification, and compliance verification of ADS-DVs without traditional manual controls. 17 18 This ANPRM continues the discussion on topics covered in the January 2018 RFC. NHTSA also recently published an ANPRM requesting public input on a possible future national pilot program for the safe on-road testing and deployment of vehicles with high or full driving automation. 19 20

Finally, NHTSA has received and evaluated an interpretation request and petition for exemption that helped inform this document. The first was an interpretation request received from Google, to which the agency responded on February 4, 2016. 21 The response covered a variety of Google's concerns relating to how it could certify a vehicle that does not include manual controls, such as a steering wheel, accelerator pedal, or brake pedal. The response also provided tables listing those standards that NHTSA could interpret Google's ADS as the “driver” or “operator,” and a table listing those standards that NHTSA could interpret the human occupant seated in the left front designated seating position as the “driver.”  22 The agency interpreted the term “driver” as applying to the ADS. Even so, NHTSA's response highlighted that interpreting the driver to be the ADS “does not end the inquiry or determine the result”—many of the interpretive requests would require rulemaking and/or exemption for resolution. 23

The second request that helped inform this document is a petition for exemption from General Motors (GM), which the agency received on January 11, 2018. 24 In that petition, GM categorized what they described as “human-driver-based requirements” into three categories: (1) Features designed to interface with a human driver, such as manual controls; (2) features designed to provide human drivers with information, such a telltales and indicator lamps; and (3) features to protect human occupants, such as air bags. GM's contention is that its ADS-DVs without traditional manual controls require only the third category of requirements. GM states that the ADS-DV provides the controls and information to the ADS, and that doing so meets the safety objectives of the FMVSS. Additionally, the GM petition states that their vehicle applies the occupant protection required for the right front seating position to the left front seating position.

Based on these efforts, NHTSA has determined that most of the potential regulatory barriers to the certification of ADS-DVs without traditional manual controls in the 100-series FMVSSs fall into three categories: (1) The standard requires a manual control; (2) the standard specifies how the agency will use manual controls in the regulatory description of how it will test for compliance; or (3) the definition or use of particular terms ( e.g., “driver”) become so unclear that clarification is necessary before certification and compliance verification testing is possible.

To address these barriers, NHTSA considered stakeholder input and conducted an internal analysis of the translations of the regulatory text necessary to remove barriers, and has identified in the ANPRM a number of regulatory approaches for how to amend the FMVSSs to accommodate compliance verification of ADS-DVs without traditional manual controls. Using two primary crash avoidance standards as illustrative examples, this ANPRM provides a discussion of the first two identified categories of potential regulatory barriers.

Removal of barriers posed by references to traditional manual controls in the standards or test procedures, however, does not resolve all issues, as NHTSA itself must still be able to test these vehicles to ensure their compliance. This ANPRM, therefore, provides several alternative compliance verification test methods that commenters briefly mentioned in their comments. NHTSA has made no judgment at this time regarding which compliance verification test method would be best for addressing the particular regulatory barriers, if any, and expects that it may be possible that the feasibility, including meeting the requirements of the Safety Act, of a particular compliance strategy would depend on the context in which it is used. It is NHTSA's hope that the feedback received in response to this ANPRM will support this and future rulemaking activities and clarify the compliance methods that would best address any crash avoidance regulatory barriers that may exist today.

On January 18, 2018, the agency issued an RFC seeking public comments to identify regulatory barriers in the existing FMVSS to the testing, compliance certification, and compliance verification of motor vehicles equipped with ADS and certain unconventional interior designs (83 FR 2607). The agency received roughly 100 comment submissions to the RFC. 25 Comments were received from a diverse group of stakeholders including safety advocates; trade associations; individual vehicle manufacturers; automotive suppliers; state and local government agencies; international standards organizations working groups; insurance/legal; research institutions; policy centers; consultants; workers'/union representatives; and individuals. In addition, to support the RFC, NHTSA held a public meeting on March 6, 2018 (83 FR 6148) in Washington, DC, at which VTTI presented an overview of their NHTSA-funded project focused on the development of options for potential FMVSSs and compliance test procedure revisions.

Comments were requested in two main areas: (1) Barriers to testing, certification, and compliance verification and (2) research needed to address those barriers and NHTSA's role in conducting such research. Topics discussed by commenters included, for example, suggestions for regulatory strategies for ADS-DVs without traditional manual controls; specific barriers; suggestions about the use of interpretations and exemptions to remove regulatory barriers; importance of maintaining and ensuring safety for all road users; activities being conducted by industry standard organizations; potential impacts to the environment and the workforce; considerations from local and state government organizations; data acquisition, use and protection; research needs; among others. Input received from these stakeholders, as it relates to the focus of this ANPRM, is included and referenced throughout this document. A brief summary of comments follows.

Vehicle manufacturers and technology companies suggested that NHTSA consider all regulatory tools in the near term, including interpretations and exemptions, to address regulatory uncertainty instead of relying on the notice and comment rulemaking process. While NHTSA is utilizing these processes, where appropriate, the agency is concurrently pursuing regulatory action to address issues that require changes to the regulatory text.

Some safety advocates stated that, before removing regulatory barriers, new FMVSSs are needed for ADSs to avoid unintended safety consequences. Vehicle manufacturers and technology companies also generally stated that NHTSA should focus on conventional vehicles equipped with ADSs first, and that barriers unaffected by the absence or presence of traditional manual controls could be addressed later. Further, there was some disagreement amongst commenters regarding which FMVSSs should be retained, even for ADS-DVs without traditional manual controls.

The agency agrees that the existing FMVSSs neither have provisions addressing the capabilities of ADSs nor prohibit ADS hardware or software, but believes that unique aspects of ADSs warrant further research to assess how to best structure any new regulation in a way that appropriately addresses safety issues. Accordingly, the agency's focus in this document is on the narrower question of how to amend the FMVSS to safely permit ADS-DVs without traditional manual controls . . . The agency, therefore, discusses an approach to address challenges for crash avoidance standards, with an emphasis on what the agency could do to clarify how it will conduct compliance verification testing for the two previously identified categories of barriers.

The agency also received comments on other topics such as data, cybersecurity, and impact of ADS-DVs without traditional manual controls on traffic congestion, transit, land use, the environment, jobs, and training. Although, not the focus of this document, the agency has reviewed and appreciates stakeholders' perspectives on these topics. Other NHTSA and DOT activities, including the Pilot Program for Collaborative Research on Motor Vehicles with High or Full Driving Automation ANPRM, Study on the Impacts of Automated Vehicle Technologies on the Workforce, and voluntary guidance documents, are examining some of these issues and may inform future regulatory proposals.

In the ANPRM, NHTSA furthers the discussion begun in the RFC by seeking comment on potential strategies to safely address regulatory barriers to the compliance verification of ADS-DVs without traditional manual controls. Because the agency believes that safety should be the primary focus of its efforts to address barriers to ADS-DVs, we ask that commenters explain how the use of the different regulatory approaches discussed in this document would affect vehicle safety.

In this section, the agency describes and provides illustrative examples of the two predominant categories of regulatory barriers to compliance certification that exist in the crash avoidance standards.

The crash avoidance standards, located in the FMVSS 100-series, are designed to reduce the likelihood of a crash occurring or, failing that, reduce the severity of a crash by reducing the velocity of vehicles involved in a crash. This is in contrast to the agency's crashworthiness standards, located in the FMVSS 200-series, which are designed to reduce the risk of injury to occupants in a crash. Thus, the most prominent historical examples of crash avoidance standards concern: Lighting, mirrors and other measures to enhance visibility; braking requirements; and measures related to tires. More recently, this category of standards includes the agency's requirements that rely on advanced safety systems, including electronic stability control (ESC), rear visibility systems, and sound alerts for pedestrians, as these technologies, like more advanced ADS technologies, are designed to decrease the likelihood of a crash.

The agency has established that most of the barriers within the crash avoidance standards fall into one of the following three types:

1. The standard requires a manual control.

2. The standard specifies how the agency will use manual controls in the regulatory description of how it will test.

3. The definition or use of terms ( e.g., “driver”) in the FMVSS that assume human control of vehicles.

The following sections discuss these first two types of barriers by focusing on a prominent example of each barrier and how the agency could address this type of barrier. The third type of barrier has impacts on all of NHTSA's standards, and therefore will be addressed in the agency's future documents.

The first type of barrier to the compliance verification of an ADS-DV without traditional manual controls is when a safety standard directly requires a manual control be provided in the vehicle.

FMVSS No. 135, “Light vehicle brake systems,” provides an illustrative example of a standard that serves as a potential barrier because it requires that vehicles be equipped a manual control and requires that this manual control be used to test compliance. Specifically, per FMVSS No. 135, S5.3, all light vehicles must be equipped with service brakes that “ shall be activated by means of a foot control. ”

Evaluation and discussion of this barrier is not new—NHTSA's interpretation letter to Google stated that the agency would need to commence rulemaking to consider an amendment to FMVSS No. 135. 26 The agency is carefully assessing the overall safety impacts of removing any potential barriers in FMVSS No. 135.

RFC Comments: A number of commenters to the RFC specifically discussed the FMVSS No. 135 “foot control” requirement as a potential barrier to the design of their ADS-DVs without traditional manual controls. Overall, many of the industry commenters requested that NHTSA remove the reference to a foot control. However, other commenters, including some safety advocates, requested that NHTSA focus its efforts on creating additional standards to regulate the ADS rather than removing or modifying components of current standards. Some commenters also requested that NHTSA examine any risks associated with permitting the removal of brake system controls and advocated for a holistic assessment of all risks each FMVSS mitigates.

NHTSA's Preliminary Analysis: To consider how best to address a regulatory barrier such as that imposed by the FMVSS No. 135 “foot control” requirement, NHTSA believes it is important to first consider the safety purpose of the standard. For example, the stated purpose of FMVSS No. 135 is to “ensure safe braking performance under normal and emergency driving conditions.”  27 A foot-controlled brake serves several interests. First, it ensures that a driver can decelerate the vehicle while maintaining maximum control over the steering input. Second, it ensures that a driver will always know that brakes are actuated by foot controls. Third, absent power brake technology, a driver can apply more force with a foot pedal than by using a hand-operated control. Some of these interests are less relevant today than in the past. For example, power brake technology can substantially reduce the force required to actuate the service brakes and is found in the vast majority of new vehicles produced today.

In considering whether to remove a requirement for a manual control such as a foot-actuated service brake control, it is critical to consider broader impacts on safety. Specifically, in order to assess the overall impact of removing the requirement that service brakes be operated by foot control, NHTSA must consider the reasoned expectation that a human driver will reliably use the service brakes to avoid obstacles.

Thus, NHTSA is considering four possible approaches to address requirements for manual controls such as the foot-actuated brake pedal requirement in FMVSS No. 135. As these are general approaches to this issue, they are not intended to address specific standards, which may have underlying statutory mandates that could limit the agency's flexibility.

• First, if the required control is necessary for motor vehicle safety on all vehicles, NHTSA would retain the requirement for all vehicles, even if that requires potentially redundant technologies for certain ADS-DVs without traditional manual controls.

• Second, if the required control is no longer necessary for motor vehicle safety for any vehicle, NHTSA could remove or otherwise modify the requirement, if permitted to by law.

• Third, if the required control is still necessary for motor vehicle safety for traditional vehicles, but not necessary for the safety of ADS-DVs without traditional manual controls, NHTSA could retain the requirement only for traditional vehicles and, if permitted by law, exclude ADS-DVs without manual controls.

• Fourth, if the required control is necessary for motor vehicle safety, but a different control ( i.e., a non-human-actuated control) would be necessary for an ADS-DV to perform the same function, NHTSA may retain the existing requirement for traditional vehicles, but have a separate, different control or equipment requirement for ADS-DVs without traditional manual controls.

The second type of barrier is when the test procedure for a standard specifies how the agency will use manual controls in the regulatory description of how it will test vehicles' compliance with the performance requirements of an FMVSS, even though the standard itself does not require a manual control. Typically, NHTSA's safety standards outline performance requirements that must be met under certain test procedures and NHTSA will conduct compliance verification tests in accordance with these procedures. Some descriptions of how NHTSA will conduct a FMVSS compliance verification test reference controls that are not present on ADS-DVs without traditional manual controls, or not provided in the same capacity as a vehicle with manual controls.

An example of this type of barrier is in FMVSS No. 126; Electronic Stability Control (ESC) Systems for Light Vehicles. The purpose of FMVSS No. 126 is to reduce the numbers of deaths and injuries that result from crashes in which the driver loses directional control of the vehicle, including those resulting in vehicle rollover, by requiring that vehicles be installed with an ESC system that meets the performance requirements established in the standard. 28 The FMVSS, therefore, is about the performance of the ESC system, not any traditional manual control. However, the compliance test included in the regulation states that “a steering machine programmed to execute the required steering pattern must be used.”  29 This paragraph says that the agency will use a steering machine, which mounts to the vehicle steering wheel and, through computer programming, is used to apply steering inputs at specific magnitudes, rates, and timing, when conducting the tests within the ESC standard. This requirement is based on the assumption at the time of the standard's promulgation that all vehicles subject to FMVSS No. 126 would have steering wheels. However, for an ADS-DV without a traditional steering wheel, the manufacturer of the vehicle is left without the necessary information as to how the agency will conduct a compliance verification test, and therefore, lacks the regulatory certainty it would normally have when conducting its certification testing for a traditional vehicle. Further, NHTSA would also not be able to conduct its own compliance test. Thus, in this scenario, it is impossible to determine whether the ESC is adequately functioning.

RFC Comments: Several commenters provided feedback on possible alternate test methods to verify compliance with FMVSS No. 126. Many of these comments concerned how compliance could be verified once the agency has determined how to modify the test procedure to remove the reference to the traditional manual control. These issues are addressed in the following section. With regard to how the procedures themselves could be modified, some commenters suggested that the agency focus on identifying alternate performance criteria to address the safety intent of the standard using different metrics ( i.e., lateral displacement, peak yaw rate, and instant yaw rate). Specific to the ESC test, one commenter suggested an alternate metric to steering wheel angle suggested by commenters was the angle of the front wheels relative to the longitudinal axis of the vehicle. Other commenters suggest that, instead of making substantial changes to existing standards, NHTSA should consider issuing a separate set of standards specifically for ADS-DVs.

NHTSA's Preliminary Analysis: Considering the FMVSS No. 126 example above, the purpose of this standard is to “reduce the number of deaths and injuries that result from crashes in which the driver loses directional control of the vehicle, including those resulting in vehicle rollover.” That is, the agency did not promulgate the rule for the purpose of requiring a steering wheel or regulating the performance of the steering wheel, but used the equipment it reasonably anticipated at the time would be included in any of the vehicles for which ESC would be required. The agency tentatively believes that other standards that present similar types of barriers were also intended to address the performance of some other part of the vehicle, rather than the manual control. Therefore, the agency could modify the test procedure in such a way that removes or modifies the reference to the control without affecting the performance of the regulated aspect of the vehicle.

There are numerous ways that this could be done. For example, if an ADS-DV lacks traditional manual controls but continues to have some way to control the vehicle ( e.g., through a wireless application), the agency could revise the test procedure to reference alternative types of controls. Alternatively, it may be that these vehicles will also continue to have equipment that the agency can use to test the performance of a regulated component. For example, although vehicles without traditional manual controls will not have a steering wheel, they will have a steering system that controls the directional motion of the vehicle based on inputted path or destination information. 30 NHTSA may be able to identify a different point within the steering system at which the magnitude of a turn can be measured. If such a point can be identified and a means of commanding the translated input to the vehicle can be developed, NHTSA could conduct the ESC compliance test in the same manner as it is done on vehicles with steering wheels. NHTSA requests comment on this analysis and possible approaches for addressing test procedures that presume the presence of manual controls, such as the steering wheel angle portion of FMVSS No. 126. Another approach may be to identify and evaluate other relevant performance metrics. For example, replacing the steering wheel angle requirements with a wheel angle requirement. Further, the agency could more dramatically revise the standard to address the performance of the regulated feature or component by considering the safety intent of the standard. For example, for ESC, the safety intent is to reduce deaths and injuries from crashes in which the driver loses directional control of the vehicle. If NHTSA took this type of broad view, it could potentially replace the sine-with-dwell maneuver with some type of road course that would assess the ADS-DV's ability to steer to avoid obstacles, potentially including a variant of the sine-with-dwell maneuver, thereby testing the associated lateral accelerations, yaw rates, etc. However, to develop an objective, repeatable road course to replace the sine-with-dwell maneuver and adequately evaluate a vehicle's ESC system would require considerable research, so other nearer-term solutions would still need to be considered.

The agency seeks comment on the feasibility of these and other approaches, including explanation of how any potential changes to the regulatory text will affect vehicle safety. 31

The above two examples demonstrate different types of barriers that exist for manufacturers interested in certifying ADS-DVs that lack traditional manual controls to existing requirements in the FMVSSs. These barriers are not mutually exclusive, as a particular standard could include both types of barriers.

The agency has tentatively identified the types of barriers in the following provisions: In FMVSS No. 108, hazard warning signal flashers and operating units, beam switching devices, and turn signal operating units; in FMVSS No. 114, depressing the brake pedal and references to the parking brake; in FMVSS No. 138, driving the vehicle on the Uniform Tire Quality Grading (UTQG) public roadways as part of the compliance test procedure; as well as similar provisions in the standards that apply specifically for heavy vehicles, including FMVSS No. 105, 121, and 136. See the table below categorizing each of these additional examples by the type of barrier it represents.

The agency has a series of questions relating to the examples listed above in this section and to the next section. Thus, the questions will be listed after the following section.

The above discussion concerns how the agency could remove references to traditional manual controls in both the standards and test procedures. However, that begs the question: once vehicles no long have traditional manual controls, how will NHTSA be able to test them to ensure that they meet the revised standards? Without traditional controls, NHTSA will have to confront such varied issues as: how to get a vehicle it purchases for compliance testing from the test facility; how it will direct the vehicle to perform the required test procedure; how it will deal with a vehicle whose ODD does not include a test facility; and so on.

Below are several general approaches NHTSA could consider in developing a document proposing to amend the existing 100-series FMVSS requirements and test procedures for ADS-DVs without manual controls in a way that allows NHTSA to conducts testing for vehicles that are not required to have traditional manual controls. NHTSA developed these approaches in response to certain comments  32 received in response to the January 2018 RFC, as well as NHTSA's own internal analysis. NHTSA's goal is to ensure that the testing methods it specifies for its use in testing ADS-DVs without traditional manual controls are practicable and objective, and otherwise meet the requirements of the Safety Act.

The agency requests comment on the following approaches: (1) Normal ADS-DV operation; (2) Test Mode with Pre-Programmed Execution (TMPE); (3) Test Mode with External Control (TMEC); (4) Simulation; (5) Technical Documentation for System Design and/or Performance Approach; and (6) Use of Surrogate Vehicle with Human Controls. The agency also requests comment on whether any additional alternatives are possible. In addition to answers to the questions that appear after the discussion of each approach, NHTSA requests that commenters answer these questions for each of the approaches:

1. What are the possible advantages and disadvantages of each approach?

2. Discuss whether each approach fits the requirements and criteria of the Safety Act and enables effective enforcement of the FMVSSs. Explain the basis for your answers.

3. Can more than one of these approaches be specified by the agency as alternative ways for the agency to determine compliance with the same requirement in the same FMVSS? If so, please describe how this could be done consistent with the Vehicle Safety Act, using one or more specific FMVSS requirements as illustrative examples. If more than one approach could be specified for the same requirement in the same FMVSS, do commenters believe that the agency, in assessing compliance with the same requirement in the same FMVSS, choose one approach for one vehicle model, but another approach for a different model? If so, explain why.

4. If only one of these approaches can be used to enforce a particular FMVSS requirement, what factors should be considered in selecting that approach? What policy or other considerations should guide the agency in choosing one alternative approach versus another for determining the compliance of a particular vehicle or item of equipment?

5. With respect to any single approach or combination of approaches, could it be ensured that the compliance of all makes and models across the industry is measured by the same yard stick, i.e., that all vehicles are held to the same standard of performance, in meeting the same FMVSS requirement?

6. What other potential revisions or additions to terms, in addition to `driver', are necessary for crash avoidance standards that NHTSA should consider defining or modifying to better communicate how the agency intends to conduct compliance verification of ADS vehicle.

7. Should NHTSA consider an approach to establish new definitions that apply only to ADS-DVs without traditional manual controls?

8. For compliance testing methods involving adjusting current test procedures to allow alternative methods of controlling the test vehicle during the test (normal ADS-DV function, TMPE, TMEC), or to allow the use of a surrogate vehicle:

a. How could NHTSA ensure that the test vehicle's performance using the compliance method is an accurate proxy for the ADS-DV's performance during normal operation?

b. If NHTSA were to incorporate the test method into its test procedures, would NHTSA need to adjust the performance requirements for each standard (in addition to the test procedures) to adequately maintain the focus on safety for an ADS-DV?

9. For compliance testing methods that replace physical tests with non-physical requirements (simulation, documentation):

a. If the test method is used to determine compliance with a real-world test, how can NHTSA validate the accuracy of a simulation or documentation?

b. If NHTSA must run real-world tests to validate a simulation or documentation, what is the advantage of non-physical requirements over these other compliance methods?

10. Would non-physical requirements simply replicate the existing physical tests in a virtual world? If not, what would be the nature of the non-physical requirements (that is, what performance metrics would these requirements use, and how would NHTSA measure them)? Are there ways that NHTSA could amend the FMVSSs to remove barriers to ADS-DVs that would not require using the compliance test methods described in below?

a. Are there any barriers in the FMVSS or NHTSA's test procedures that could be addressed by altering or removing references to manual controls in the test procedures without substantively changing the FMVSS performance requirement?

b. Are there any changes that NHTSA could make to the FMVSS test procedures that could incorporate basic ADS capabilities to demonstrate performance, such as using an ADS-DV's capability to recognize and obey a stop sign to test service brake performance?

11. What research or data exists to show that the compliance test method would adequately maintain the focus on ADS-DV safety? What modifications of the safety standards would be necessary to enable the use of the test method?

One possible approach for vehicle manufacturers to use for self-certification, and the agency to use for compliance verification, is the “Normal ADS-DV Operation” approach. This approach involves operating the ADS-DV without traditional manual controls “as-is” with no extra programming and/or installation of any kind of manual controls for test maneuver execution. The ADS would be in control of the vehicle during compliance testing with all of its operational restrictions and decision-making capabilities in place. In its most basic form, compliance verification using Normal ADS-DV Operation would require the engineer performing the compliance test to input an appropriate destination using the same input method indicated by the ADS-DV's manufacturer for real-world operation. Vehicle performance would be observed and assessed during the period of normal on-road vehicle operation.

The Normal ADS-DV Operation approach may provide the most “realistic” representation of how the vehicle would perform during normal use. This approach could allow NHTSA to continue acquiring vehicles in the same way that U.S. consumers do, from commercial dealerships, and testing actual vehicles to verify they meet the FMVSS requirements. 33 NHTSA is interested in maintaining its policy to buy and test new production vehicles from dealership lots, to the extent possible. NHTSA believes that there are several test requirements in the FMVSSs for which Normal ADS-DV Operation may be a feasible compliance option if certain assumptions are correct. For example, the FMVSS No. 138 procedure for testing a vehicle's tire pressure monitoring system requires that the test vehicle is driven on a specific public roadway for a specified distance at the posted roadway speeds. During the test, the vehicle is stopped along the way to reduce tire inflation pressure and then driven again until a low inflation pressure indication is obtained. This test procedure could be modified to permit use of the Normal ADS-DV Operation approach for ADS-DVs by allowing the driving portion of the test to be performed by the ADS, which would be commanded by the test engineer using the ADS-DV's normal input method to select a destination.

The primary drawback to the Normal ADS-DV Operation approach for ADS-DVs that lack manual controls is that its application is limited to test procedure requirements capable of being performed within the Operational Design Domain (ODD)  34 of the ADS. As such, tests involving vehicle maneuvers or operation at speeds, locations, or other operating conditions not experienced within the vehicle's ODD could not be performed using this method. For example, a vehicle whose ODD does not include the specified test track for the above TPMS test, whether for geographic or road-type restrictions, could not use this approach to conduct the test. Another drawback of this approach, which several of the alternatives below attempt to correct, is that, even if a vehicle's ODD could allow it to perform a test, the vehicle may not be equipped with the controls necessary to allow NHTSA to actually conduct the test.

For NHTSA to evaluate the feasibility of the Normal ADS-DV Operation approach for compliance verification, the agency would need more information about the extent to which an ADS-DV can be controlled under normal operation. In addition, it is possible that normal control could be used on some vehicles but not on others, since manufacturers may implement different methods for vehicle operators to communicate with and command the vehicle to accomplish on-road driving. To the extent that some but not all ADS-DVs could be designed to allow for this type of testing, at least for certain standards, it may be challenging for NHTSA to design appropriately objective standards to cover all ADS-DVs. To address these issues, NHTSA believes it is essential to better understand how operators will interface with and operate these ADS-DVs without traditional manual controls under normal conditions.

To better understand the “Normal ADS-DV Operation” approach and its possible applications, the agency asks the following questions.

12. What design concepts are vehicle manufacturers considering relating to how an ADS-DV passenger/operator will interface with, or command ( e.g., via verbal or manual input), the ADS to accomplish any driving task within its ODD? Please explain each design concept and exactly how each would be commanded to execute on-road trips.

13. Are there specific challenges that will be encountered with this kind of approach for vehicle compliance verification? Please be specific and explain each challenge.

14. Will all ADS-DVs without traditional manual controls be capable of receiving and acting upon simple commands not consisting of a street address based destination, such as “drive forward or backwards a distance of 10 feet and stop”; “shift from park to drive and accelerate to 25 mph”; “drive up onto a car hauler truck trailer”; etc.? Please explain projected challenges for ADS-DVs without traditional manual controls to complete discrete driving commands and tasks.

15. How would NHTSA ensure that the performance of the ADS-DV during testing is consistent with how the vehicle would perform during actual normal use?

A TMPE is an approach to compliance testing in which the manufacturer programs into the ADS-DV a test mode that gives the test engineer access to a pre-programmed “compliance test library” from which pre-programmed testing scenarios can be selected and executed. The testing programs in the compliance library would be used to automatically perform the driving actions necessary for each applicable FMVSS compliance test. Pre-programmed execution is conceptually similar to that achieved via use of an external controller, discussed in detail below, in that it involves specific commands being sent to the ADS for purposes of executing compliance test procedures, with the key difference being the source of the commands. TMPE-based tests would be performed by using a manufacturer-installed suite of compliance testing programs; no external controller interface with the ADS-DV would be required to perform specified FMVSS compliance tests. A means of maneuvering the vehicle for purposes other than compliance tests may be necessary to load it onto or off of a transport vehicle and to move it in areas not part of its ODD, such as between a garage and test course at a compliance test facility.

While GM and ZF Group (ZF) briefly suggested that concepts similar to TMPE may be a viable approach, Mercedes and the Alliance of Automobile Manufacturers (Alliance), who discussed TMPE in greater detail, raised a number of potential problems that NHTSA believes may need to be addressed for it to be a viable method for compliance testing. Both Mercedes and the Alliance noted that pre-programmed execution may not be possible for test procedures that require driving maneuvers that are outside of an ADS's ODD. For example, an ADS-DV that is designed to be operated by the ADS only at lower speeds, but that does not qualify as a low-speed vehicle as defined by 571.3 (allowing it to be subject to the limited performance requirements of FMVSS No. 500), may lack the functionality to perform higher-speed maneuvers required for demonstrating compliance with certain standards ( e.g., FMVSS Nos. 126; Electronic stability control systems and 135; Light vehicle brake systems). In addition, both Mercedes and the Alliance also raised the concern that the TMPE's test mode present a vulnerability for cybersecurity-related issues, and that issues such as providing mapping data for the specific proving grounds or other facilities at which test procedure is executed would need to be addressed.

TMPE may be useful for assessing FMVSS compliance with test track-based performance requirements because it enables a test engineer to directly instruct an ADS-DV to execute the driving maneuvers necessary to perform the FMVSS test procedures. Since the ADS-DV would be programmed with the compliance library by the manufacturer at the time of production, compatibility of the commands within the library and vehicle being evaluated should be ensured ( i.e., translation of the commands defined within the FMVSS test procedures to a format understood by the ADS is not required).

TMPE also has the potential for streamlining the testing process. Rather than performing tests intended to characterize the ADS-DV without traditional manual controls ( i.e., the brake application needed to activate ABS during an FMVSS No. 135 evaluation, or the steering input needed to achieve 0.3g during an FMVSS No. 126 assessment), the ADS-DV would be pre-programmed with testing information that presumably would precisely execute the FMVSS test procedures. In addition, NHTSA could validate ( i.e., confirm that the characterization tests that provide the data needed to define the input parameters used to perform tests used in standards like FMVSS No. 126 and 135 have been correctly performed and have output the expected values) these pre-programmed configurations relatively easily by equipping the ADS-DV with conventional instrumentation during conduct of the FMVSS assessments in a manner consistent with that presently in use. NHTSA also imagines TMPE could be implemented at a relatively low cost, because manufacturers could simply program the vehicles' TMPE compliance library with the same compliance test programs the manufacturer uses for its own development testing.

Notwithstanding these potential benefits, additional information regarding the way in which a pre-programmed FMVSS compliance test library may be implemented is needed to allow NHTSA to better understand the viability of the concept. For example, how would the test engineer responsible for performing the tests access the compliance library so they may select a specific test to perform? This could conceivably be via a “test menu” presented on an original equipment visual display within the ADS-DV. However, an OEM may not want to provide an obvious or visual means of accessing a pre-programmed compliance test library to minimize the opportunity for individuals not performing compliance testing to access the test library. If access to a test menu is not provided, some means of communicating with the vehicle to select and initiate specific tests will be necessary, such as through the use of an external controller. However, NHTSA understands that granting access to the ADS-DV by means of any external controller represents a potential security risk, and would therefore like to better understand the way(s) a test engineer may be expected to securely access the compliance library and test menu required for performing FMVSS evaluations.

NHTSA also seeks to better understand transportation concerns with moving the vehicle to the desired test location and testing the vehicle at that location. The test areas used for FMVSS certification on test tracks and proving grounds can be very different than public roads and potentially outside the ODD of the test vehicle. Even if the ADS-DV is transported ( i.e., not driven) to, and unloaded at, a designated test area, test instrumentation (and potentially the vehicle itself) typically requires a sequence of short driving maneuvers be performed to initialize vehicle- and instrumentation-based sensors, and for the vehicle to be positioned at a staging point that may not necessarily be the same day-to-day or even trial-to-trial. Should the vehicle need to return to the staging point after completion of a trial, it is expected that the return path will need to be made in accordance with test facility operating guidelines to safely avoid other traffic, and obey any direction of travel and facility use restrictions, etc. The return path may not necessarily be the most direct one.

For the sake of maximizing test safety, it may be desirable to terminate a test performed with an ADS-DV if it is not being performed correctly, if the vehicle experiences a malfunction, or other traffic unexpectedly appears, etc. In some cases, it may be necessary to quickly brake the vehicle to a stop. One means of doing so could be through use of an emergency stop (E-stop) option within the test menu. To maximize the effectiveness of the E-stop, the mechanism would need to be quickly and easily accessible by the test engineer responsible for performing and/or observing test conduct. NHTSA is interested in better understanding the feasibility of incorporating an E-stop function into the ADS-DV for use during compliance testing, and what potential security risks doing so may introduce.

While attempting to perform advanced driver assistance system (ADAS) and/or Level 2 automation system tests within the confines of a test track, NHTSA has observed that certain features of some test vehicles are not available due to the location where the tests occurred ( e.g., GM's Super Cruise cannot be enabled within the confines of most test tracks since the roads at these facilities do not reside within the system's ODD). For this reason, NHTSA is interested in better understanding the feasibility of having vehicle manufacturers remove any geofence-based operating restrictions while the ADS-DV is being operated in a “test mode” intended to assess FMVSS compliance.

One disadvantage of using an FMVSS compliance library with pre-programmed tests not modifiable by the test engineer, is that test input characteristics would presumably be fixed and not able to be adjusted to be suitable for a particular test surface. Therefore, variation in test results across test locations in different geographic areas may be worse, since pre-programmed test inputs would be based on characterization tests (or even simulations) performed using a different test surface, etc. Better understanding the likelihood of this variability being great enough to affect maneuver severity is of interest to the agency. Also of interest is understanding what test tolerances an ADS-DV operating with commands from a compliance library may be expected to achieve. For example, FMVSS No. 126 requires a test maneuver entrance speed of 50 ± 1 mph (80 ± 2 km/h).

16. How could engineers responsible for performing FMVSS compliance assessments of an ADS-DV without manual controls be expected to access and interface with the compliance test library menu?

17. Would the FMVSS need to specify the libraries available to NHTSA to test the vehicle?

18. Is it practical to expect that an ADS-DV without any traditional manually-operated controls can be safely and efficiently operated within the confines of a test track with only a pre-programmed test menu ( i.e., without some form of external controller or other means of vehicle control input)?

19. Can an ADS-DV be expected to perform within tight tolerance levels using the regular on-board sensors?

20. How much variation in test results across various test locations ( i.e., proving grounds) is expected to result from testing an ADS-DV equipped with the same FMVSS compliance library at different locations? Could the ability to satisfy FMVSS performance requirements depend on the location the tests are performed?

21. Is it reasonable to assume any geofence-based operating restrictions could be suspended while the ADS-DV is operating in a “test mode” intended to assess FMVSS compliance?

22. How could vehicle-based electronically accessible libraries for conducting FMVSS testing be developed in a way that would allow NHTSA to access the system for compliance testing but not allow unauthorized access that could present a security or safety risk to an ADS-DV?

23. Are there other considerations NHTSA should be aware of when contemplating the viability of programmed execution-based vehicle compliance verification?

24. When changes or updates are made to the ADS, how will the TMPE content be updated to reflect the changes and how often would it be updated?

The TMEC approach suggested by the commenters could largely maintain existing 100-series FMVSS test procedures, but allow for test procedure steps that require an action by a human driver ( e.g., instructions relating to the accelerator or brake pedals) to be accomplished using an external controller that is not controlled by the ADS, but by a test engineer. This option is closely related to the pre-programmed execution option also discussed in this ANPRM; however, rather than requiring the tests defined in FMVSS procedures be pre-programmed within the vehicle, the commands used to perform the FMVSS test procedures (including, but not limited to, those associated with the steering wheel, accelerator pedal, brake pedal, and transmission shifter) would be sent to the ADS-DV via an external controller operated by a test engineer. Under this approach, the external controller sending the commands used to perform the FMVSS test procedures may be located inside or outside the vehicle and could be connected to the vehicle either wirelessly or through a physical connection, but would not be part of the vehicle itself. Instead, it would be a device either designed and provided to NHTSA by the manufacturer or, alternatively, a standard device designed by NHTSA.

The external control approach was discussed by commenters GM and ZF, who both suggested that FMVSS compliance could be demonstrated by a human remotely piloting the vehicle. GM suggested that NHTSA could collaborate with industry to explore using external control devices and facilities that interact with the vehicle. ZF commented that ADS-DVs without traditional manual controls “will have alternate methods of inputting driving commands for normal situations ( e.g., to input an initial destination or route), and also for emergency situations ( e.g., rerouting to a new destination, an emergency stop button for occupants), in order to provide its desired functionality and level of safety.”

Like a test mode with programmed execution, a test mode with external control would preserve an ability to assess FMVSS compliance with test track-based performance requirements because it enables a test engineer to directly instruct an ADS-DV to execute the driving maneuvers necessary to perform the FMVSS test procedures. NHTSA recognizes that some vehicle manufacturers may choose to include provisions to accept external controller functionality in their ADS-DVs so that the vehicle is able to navigate with areas outside of the ADS's ODD, such as during maintenance or on dealer lots.

NHTSA assumes that an external controller for compliance test purposes could provide test engineers with control over all vehicle functions that are relevant to compliance verification and would provide a test engineer with a straight-forward way of selecting the desired tests and input parameters associated with the test being performed. However, there may be other advantages of an external controller. For example, external control capabilities that support manual operation ( e.g., vehicle speed, steering or braking magnitude, transmission gear) could be used to safely facilitate transportation of the ADS-DV without manual controls between garages and to test pads or courses at compliance test facilities. During the conduct of compliance testing, an external controller could be used to command maneuvers used to initialize the test vehicle and/or test equipment, facilitate pre-test staging, and could be configured to provide the test engineer with an E-stop function.

25. Is it reasonable to assume a common (universal) interface, translator, and/or communication protocol between an external controller and any ADS-DV will be developed?

26. What is the most viable method for securely interfacing an external controller with the ADS-DV ( e.g., wireless or physical access)?

27. Could a means of manual control be developed that would allow NHTSA to access the system for compliance testing but not allow unauthorized access that could present a security or safety risk to an ADS-DV?

28. Is it reasonable to assume any geofence-based operating restrictions could be suspended while an external controller intended to assess FMVSS compliance is connected to the ADS-DV?

29. Are there other considerations NHTSA should be aware of when contemplating the viability of using an external controller-based vehicle certification?

Simulation is an approach for compliance verification by which NHTSA could verify that an ADS-DV complies with a FMVSS requirement using software or hardware-in-the-loop  35 based evaluations rather than performing on-road or track-based tests with a complete physical vehicle. Simulations may be useful for determining how a modeled computer system will respond to a given set of inputs. The accuracy of a simulation strongly depends on its fidelity to the actual performance of the vehicle and validation of the models used to define it.

Commenters to the RFC suggested that simulations could be particularly useful for certifying compliance with a performance standard like FMVSS No. 126, in which the purpose of the test is to ensure that the vehicle interprets sensor inputs properly, and that the vehicle translates those sensor inputs into outputs to the vehicle's driving functions that meet performance requirements. Mercedes noted that FMVSS No. 126 effectively already uses a simulation, since the required steering mechanism ensures that the vehicle receives a standardized set of steering inputs to limit variability. The Alliance also noted simulation as a possible “short-term” method of demonstrating FVMSS No. 126 compliance (as well as other FMVSS) and suggested that NHTSA should collaborate with industry stakeholders to develop a simulation “tool,” which NHTSA could validate as necessary.

While some of the comments focused on a manufacturer's own ability to use simulation in its certification testing, NHTSA is primarily interested in learning more about how NHTSA could potentially use simulation to verify compliance, and whether this method is sufficient from a legal and technical perspective.

Historically, NHTSA has not used a simulation approach for crash avoidance FMVSS compliance verification because the most accurate, economical, and feasible means of conducting tests has been to perform them on a test track, thereby avoiding any questions of simulation accuracy. Furthermore, the agency believes there could be additional safety benefits of buying and testing actual production vehicles as delivered to the consumer, which in the past has identified test failures due to vehicle design changes and equipment malfunctions that would not ordinarily have been found during vehicle simulations. For simulations, it may not be possible to accurately model proprietary control algorithms like those within an ADS electronic control unit (ECU). Complex simulation models with many inputs (such as those that would be necessary to demonstrate compliance with many of the FMVSS) are expensive to develop and difficult to validate without performing the actual test that is being simulated.

However, the agency acknowledges that simulation may play a larger role in future performance standards specific to ADS-DVs and other ADS-equipped vehicles, because simulations could provide a practical and cost-effective means for evaluating a wide array of test and real-world operating conditions to which these vehicles will be exposed, and for which physical testing to a sufficient degree may be infeasible.

For a simulation to be considered for compliance verification, there are a number of considerations that the agency believes must be accounted for. The most difficult aspect of using simulation as a compliance verification method is the validation of the models used. This is because a simulation suitable for an accurate and representative assessment of an ADS-equipped vehicle, whether it be an ADS-DV without traditional manual controls or one that could allow for manual control at times, would likely need to model both the vehicle (including but not limited to its chassis, drivetrain, suspension, brake system, tires, and ADS-relevant sensors, and any potential discrepancy between a modeled version of the vehicle and real-world production model) and the elements used to define the road surface and other characteristics of the environment in which the tests are performed. Accurate modelling by NHTSA would likely require the agency to incorporate vehicle-specific parameters and proprietary control algorithms, which may not be available for use by NHTSA and, if not available, would require extensive testing at a substantial cost for NHTSA to develop a model.

As mentioned above, a key part of NHTSA's enforcement responsibilities includes buying and testing actual production vehicles to verify, “as-sold” to the public, that these vehicles meet the FMVSS requirements. These actual “on-track” tests are important to verify compliance but also to help identify a manufacturer's certification shortcomings ( e.g., suspension design changes that inadvertently change the performance of the ESC system, or a part replacement that inadvertently changes the performance of a brake system) and possible safety-related defects problems that would not necessarily be identified through simulation.

For research purposes, NHTSA is considering the feasibility of working with vehicle manufacturers to develop an application programming interface (API) designed to allow a common set of operating conditions (which could potentially include those associated with FMVSS compliance tests), to interface with their (the vehicle manufacturer's) ADS. Conceptually, the API would function as a translator; a means of ensuring that simulated input conditions are properly interpreted by the ADS so that it, and the vehicle it resides in, responds in the same way it would in the real world.

30. How can simulations be used to assess FMVSS compliance?

31. Are there objective, practicable ways for the agency to validate simulation models to ensure their accuracy and repeatability?

32. Is it feasible to perform hardware-in-the-loop simulations to conduct FMVSS compliance verification testing for current FMVSS?

33. Is it feasible to perform software-in-the-loop simulations to conduct FMVSS compliance verification testing?

For the Technical Documentation approach, vehicle-specific technical design and/or build documentation ( e.g., a system function description and logic and/or schematic diagrams) could be provided to allow NHTSA to permit an assessment of FMVSS compliance. It should be noted that this is different than the technical design documentation that is provided to NHTSA today. It is technical design documentation used by the manufacturer in the design and construction of the vehicle.

Several industry commenters discussed the approach of using technical documentation for compliance verification of vehicles for specified FMVSS requirements. The commenters noted that documentation could be used to address two different kinds of requirements. The first kind of requirements include those without performance specifications ( e.g., the ESC system must have the capability to apply brake torques at each wheel and to determine yaw rate). The second kind of requirements include those with system performance specifications ( e.g., during an ESC system sine-with dwell test the yaw rate must not exceed 35% of the peak yaw rate 1 second after completion of the steering input; or during service brake system tests, with the test vehicle operating at 100km/h, the service brake system must be able to stop the vehicle within a specified distance).

For the first kind of requirements, those that do not include performance specifications, the Alliance explained that, “where there are no specific performance requirements within a FMVSS, but there is a desire to verify the general component and functional capability, NHTSA has included provisions for technical documentation to demonstrate FMVSS compliance in the appropriate standards.” GM stated that, “[t]echnical documentation is particularly useful for identifying components and functions for which no discrete performance requirement needs to be measured through testing.”  36 Both the Alliance and GM mentioned FMVSS No. 126 as an example of a standard that NHTSA could request technical documentation for certain functionality portions of the standard.

Considering ADS-DVs without manual controls, for the second kind of requirements that do specify system performance requirements, GM stated that, in reference to allowing flexibility to demonstrate performance requirements specified in FMVSS No. 126 and FMVSS No. 135, manufacturers could be required to provide technical documentation explaining the methodology used and associated test results. GM stated that “the performance requirements currently specified in FMVSS Nos. 126 and 135 should be preserved for self-driving vehicles, with `technical documentation' to report how the manufacturer certified to those requirements.” The Alliance stated that there are methods that could be used as the basis for technical documentation ( e.g., simulation, whole vehicle testing, hardware-in-the-loop testing, etc.) and believes that research is required to adapt the FMVSS No. 126 “sine with dwell” test procedure for ADS-DVs. The Alliance recommended that NHTSA consider adopting a technical documentation approach to the “sine with dwell” test requirements in the near-term. Mercedes stated that manufacturers could demonstrate ADS-DV compliance with ESC requirements via technical documentation, although in their opinion this approach would be more burdensome both for manufactures and for NHTSA.

Technical documentation is currently permitted for use in demonstrating compliance for a portion of one crash avoidance standard, FMVSS No. 126. For this standard, the agency requires manufacturers to make available upon request, documentation ( i.e., a system diagram, a written explanation of how the system works, and a logic diagram) demonstrating that a vehicle is equipped with an ESC system that is consistent with the definition described in the standard. 37 During the development of the rule, the agency was not able to finalize an objective and repeatable performance test to evaluate understeer conditions. For this reason, the agency resorted to developing the compliance documentation requirements for describing the ESC system's capability to address understeer conditions described in S 5.6. FMVSS No. 126 S 5.6 states that the manufacturer must make available to the agency upon request, documentation that includes a discussion on the pertinent inputs to the ESC computer or calculations within the computer and how the algorithm uses that information and controls ESC system hardware to limit understeer. A system diagram, depicting all the ESC system hardware is used as part of the compliance verification of the ESC definition to identify the components used for brake torque generation at each wheel and yaw rate monitoring. An additional written explanation and the logic diagrams are also used, as part of the compliance verification, to better describe how all the components work together to address vehicle instabilities. While NHTSA has used technical documentation for one portion of one standard, the agency did so as a measure of last resort because technical documentation does not confirm the level of performance for the physical vehicle.

For the second kind of requirements ( i.e., requirements that include system performance specifications) the commenters discussed using various kinds of performance or test data documentation for compliance verification. In the regulatory language of many FMVSS, NHTSA provides test procedures so vehicle manufacturers know how NHTSA will test their vehicles and equipment. In addition to testing, occasionally, and typically in the context of an enforcement investigation into potential noncompliance with a FMVSS, NHTSA requests a manufacturer submit documentation/data that illustrates its basis for certification. Upon NHTSA's request, most manufacturers provide test reports similar to the reports generated by NHTSA contracted test labs (showing the results of the manufacturer's testing, just as NHTSA would have reports exhibiting the results of its own testing). For many of the crash avoidance FMVSSs, as their basis for compliance, vehicle manufacturers conduct testing in a similar manner as NHTSA conducts compliance verification, namely, using the same test procedures, test equipment and data collecting process. If this process changes and manufacturers solely provide NHTSA with the reports that include the performance test results without NHTSA testing the vehicle, it is not clear how the agency would properly verify compliance and ensure at least the same level of performance has been achieved. Furthermore, it has always been critical for the agency to establish objective, repeatable, and reproducible test procedures for manufacturers and the agency to both use ensuring the same test results regardless of who executes the test, or when and where the test is executed.

As mentioned above under the simulation discussion, the agency believes it is important to buy and test new vehicles as produced and sold. If documentation is used as a tool in the future, NHTSA would continue to focus on real-world testing of actual vehicles being operated on public roads. These actual “on-track” tests conducted by the agency are important to verify compliance but also to help identify a manufacturer's certification shortcomings ( e.g., suspension design changes that inadvertently change the performance of the ESC system, or a part replacement that inadvertently changes the performance of a brake system) and possible safety related defects; problems that would not necessarily be identified through documentation.

34. How can the documentation-focused approach ensure compliance with FMVSS, considering it neither verifies that the vehicles on the road match the documentation nor confirms that the vehicles on the road comply with the FMVSSs?

35. If technical documentation were acceptable for compliance verification, how would the manufacturer assure the agency that the documentation accurately represents the ADS-DV and that the system is safe?

36. Exactly what kind of documentation could be submitted for each kind of FMVSS requirement? Provide specific examples with detailed explanation of the documentation required.

Using the surrogate vehicle with human controls approach, the vehicle manufacturer would demonstrate that all relevant aspects of the surrogate vehicle are identical to those of the ADS-DV without traditional manual controls and then complete compliance verification using that surrogate vehicle and apply the results to the ADS-DV without traditional manual controls.

Several commenters suggested that a short-term solution for compliance verification testing of ADS-DVs is to certify a manually-operated “sister” ( i.e., surrogate) vehicle that shares the same platform, but differs from the ADS-DV because it has manual controls included for testing purposes. The Alliance, for example, suggested this as an approach to testing FMVSS No. 126. Ford agreed with this approach.

Attempting to specify in a FMVSS test procedure that NHTSA will use surrogate vehicles in its compliance testing would create several challenges. First, if, in lieu of testing an ADS-DV, NHTSA were to test a surrogate vehicle, the agency may have difficulty demonstrating that such a test establishes the noncompliance of the ADS-DV. Since an ADS-DV would be equipped with components that provide the means to perform automated driving, a task the conventional surrogate vehicle is either not expected to perform or can perform while still including manual controls, inherent differences would be expected between the two vehicles. The implications of these differences must be understood to assess the viability of this approach. The agency would need to attempt to develop criteria for identifying suitable surrogates. These criteria would need to be universal in that they need to demonstrate equivalence for any vehicle, not only for a specific vehicle design. Second, even if it were possible to establish criteria for reliably identifying suitable surrogate vehicles, if it would nevertheless be more difficult for the agency to find suitable surrogates for some ADS-DVs than others, the agency might find it difficult to ensure that it could treat all ADS-DVs in an equitable manner. Third, the suitable surrogate vehicles must be available for sale in the United States.

37. To what extent could equivalence of the vehicle components used for conventional and ADS-DVs be demonstrated to assure that surrogate vehicle performance would be indicative of that of a surrogate ADS-DV?

38. How can the agency confirm that the maneuver severity performed by a surrogate manually-drivable vehicle, during FMVSS compliance tests, is equal to that of the subject ADS-DV? For example, how can the characterization maneuvers and subsequent scaling factors in the FMVSS No. 126 ESC test on the surrogate vehicle be confirmed as equivalent on the ADS-DV?

39. If results from FMVSS compliance tests of a conventional vehicle performed by its manufacturer differ from the results of NHTSA tests of an equivalent ADS-DV (particularly if the conventional vehicle complies with the agency's standards, but the ADS-DV does not), can the conflicting results be reconciled? If so, how?

Your comments will help NHTSA improve this regulatory action. NHTSA invites you to provide different views on options NHTSA discusses, new approaches the agency has not considered, new data, descriptions of how this ANPRM may affect you, or other relevant information.

NHTSA welcomes public review of on all aspects of this ANPRM. NHTSA will consider the comments and information received in developing its eventual proposal for how to remove regulatory barriers to ADS-DVs that lack manual controls by updating and modifying current FMVSS. As noted thorough this document, we are especially interested in comments that focus on how the test methods discussed ensure vehicle safety. Your comments will be most effective if you follow the suggestions below:

• Explain your views and reasoning as clearly as possible.

• Provide solid evidence and data to support your views.

• If you estimate potential costs, explain how you arrived at that estimate.

• Tell NHTSA which parts of the ANPRM you support, as well as those with which you disagree.

• Provide specific examples to illustrate your concerns.

• Offer specific alternatives.

• Refer your comments to the specific sections of (or questions listed in) the ANPRM.

Your primary comments should be written in English. To ensure that your comments are filed in the correct docket, please include the docket number of this document (NHTSA-2019-0036) in your comments.

Your primary comments should not be more than 15 pages long (49 CFR 553.21), however, you may attach additional documents, such as supporting data or research, to your primary comments. There is no limit on the length of the attachments.

Please submit one copy (two copies if submitting by mail or hand delivery) of your comments, including the attachments, to the docket following the instructions given in the ADDRESSES section at the beginning of this document. Please note, if you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using the Optical Character Recognition (OCR) process, thus allowing NHTSA to search and copy certain portions of your submission.

Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the Office of Management and Budget (OMB) and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. DOT's guidelines may be accessed at www.transportation.gov/regulations/dot-information-dissemination-quality-guidelines (last accessed May 22, 2018).

If you submit comments by hard copy and wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail. If you submit comments electronically, your comments should appear automatically in Docket No. NHTSA-2019-0036 on www.regulations.gov. If they do not appear within two weeks of posting, NHTSA suggests that you call the Docket Management Facility at 202-366-9826.

If you wish to submit any information under a claim of confidentiality, you must submit three copies of your complete submission, including the information that you claim to be confidential business information, to the Office of the Chief Counsel, NHTSA, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.

In addition, you should submit a copy (two copies if submitting by mail or hand delivery) from which you have deleted the claimed confidential business information to the docket by one of the methods given above under ADDRESSES . When you submit a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in NHTSA's confidential business information regulation (49 CFR part 512).

NHTSA will consider all comments that the docket receives before the close of business on the comment closing date indicated in the DATES section. To the extent possible, NHTSA will also consider comments that the docket receives after that date.

You may read the comments received by the docket at the address given in the ADDRESSES section. The hours of the docket are indicated above in the same location. You may also read the comments on the internet, identified by the docket number at the heading of this document, at www.regulations.gov. Please note that, even after the comment closing date, NHTSA will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, NHTSA recommends that you periodically check the docket for new material.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, Oct. 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to OMB review and to the requirements of the Executive Order.

This action is not subject to the requirements of E.O. 13771 (82 FR 9339, (Feb. 3, 2017)) because it is an advance notice of proposed rulemaking.

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., no analysis is required for an ANPRM. However, vehicle manufacturers and equipment manufacturers are encouraged to comment if they identify any aspects of the potential rulemaking that may apply to them.

NHTSA does not believe that there would be sufficient federalism implications to warrant the preparation of a federalism assessment.

With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issues by the Attorney General. This document is consistent with that requirement.

Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. There are no information collection requirements associated with this ANPRM. Any information collection requirements and the associated burdens will be discussed in detail once proposed rules have been issued.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law ( e.g., the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. Voluntary consensus standard ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as SAE International. The NTTAA directs us to provide Congress (through OMB) with explanations when we decide not to use available and applicable voluntary consensus standards. While NHTSA is considering options regarding the modification of various FMVSS, it has not yet developed specific regulatory requirements, and thus the NTTAA does not apply for purposes of this ANPRM.

The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure of State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). NHTSA has determined that this rulemaking action would not result in expenditures by State, local, or tribal governments, in the aggregate, or by the private sector, in excess of $100 million annually.

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has preliminarily determined that implementation of this rulemaking action would not have any significant impact on the quality of the human environment. The agency will consider this further in any future proposed rules.

Executive Orders 12866 and 13563 require each agency to write all documents in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?

• Are the requirements in the document clearly stated?

• Does the document contain technical language or jargon that is not clear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

If you have any responses to these questions, please include them in your comments on this proposal.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

I. Public Participation and Request for Comments A. Submitting Comments

If you submit a comment, please include the docket number for this ANPRM (Docket No. FMCSA-2018-0037), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, put the docket number, FMCSA-2018-0037, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

FMCSA will consider all comments and material received during the comment period and may initiate a proposed rule based on your comments.

The Agency notes that 49 CFR 389.9 provides protection for “confidential business information” which includes trade secrets or commercial or financial information that is privileged or confidential, as described in 5 U.S.C. 552(b)(4). Commercial or financial information is considered confidential if it is voluntarily submitted to the Agency and constitutes the type of information not customarily released to the general public. Under the Freedom of Information Act, CBI is eligible for protection from public disclosure. If you have CBI that is relevant or responsive to this ANPRM, it is important that you clearly designate the submitted comments as CBI. Accordingly, please mark each page of your submission as “confidential” or “CBI.” Submissions designated as CBI and meeting the definition noted above will not be placed in the public docket of this ANPRM.

Submissions containing CBI should be sent to Brian Dahlin, Chief, Regulatory Evaluation Division, 1200 New Jersey Avenue SE, Washington, DC 20590. Any commentary that FMCSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

FMCSA will consider all comments and material received during the comment period.

To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0037, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

This ANPRM is based on the general authority of the Motor Carrier Act of 1935 (MCA or 1935 Act) [49 U.S.C. 31502], the Motor Carrier Safety Act of 1984 (MCSA or 1984 Act) [49 U.S.C. 31136], and the Commercial Motor Vehicle Safety Act of 1986 (CMVSA or 1986 Act) [49 U.S.C. chapter 313], as all of those statutes have been amended.

These statutes provide sufficient legal authority for the Secretary to issue regulations on the operation of ADS-equipped CMVs. Further, FMCSA's current regulations, promulgated pursuant to these statutes, do not explicitly require human operators or drivers. Various provisions, therefore, would either have no applicability or would need to be adapted to take into account the differences between ADS-equipped CMVs and more traditional vehicles.

FMCSA is responsible for overseeing the safety of CMVs, their drivers, and their operation in interstate commerce. The Agency works with Federal, State, and local enforcement agencies, the motor carrier industry, and interested stakeholders to reduce crashes, injuries, and fatalities involving large trucks and buses.

The FMCSRs provide rules to support the safe operation of CMVs, as defined in the MCSA (49 CFR 390.5) and the CMVSA (49 CFR 383.5).

On April 24, 2017, FMCSA held a public listening session to solicit information on issues relating to the design, development, testing, and integration of ADS-equipped CMVs (82 FR 18096, April 17, 2017). The listening session provided interested parties an opportunity to share their views and any data or analysis on this topic with Agency representatives. The Agency also invited interested parties to submit written comments by July 17, 2017. A full transcript of the listening session and all written comments are available in public docket FMCSA-2017-0114, at www.regulations.gov.

In addition to the public listening session discussed above, FMCSA commissioned the Department's Volpe National Transportation Systems Center (Volpe) to conduct a preliminary review of the FMCSRs to identify regulations that relate to the development and safe introduction of ADS. Volpe's final report is titled “Review of the Federal Motor Carrier Safety Regulations for Automated Commercial Vehicles: Preliminary Assessment of Interpretation and Enforcement Challenges, Questions, and Gaps,” report number MCSA-RRT-17-013, August 2017. A copy of the report is available in public docket, FMCSA-2017-0114, at www.regulations.gov.

On September 12, 2017, the Department, through the National Highway Traffic Safety Administration (NHTSA), published “Automated Driving Systems 2.0: A Vision for Safety” (A Vision for Safety 2.0), adopting the SAE International (SAE) J3016 standard's definitions for Levels of automation. The SAE definitions divide vehicles into Levels based on “who does what, when.” Generally:

• SAE Level 0, No Driving Automation: The performance by the driver of the entire dynamic driving task (DDT), even when enhanced by active safety systems.

• SAE Level 1, Driver Assistance: The sustained and operational design domain (ODD) specific execution by a driving automation system of either the lateral or the longitudinal vehicle motion control subtask of the DDT (but not both simultaneously) with the expectation that the driver performs the remainder of the DDT.

• SAE Level 2, Partial Driving Automation: The sustained and ODD-specific execution by a driving automation system of both the lateral and longitudinal vehicle motion control subtasks of the DDT with the expectation that the driver completes the object and event detection and response (OEDR) subtask and supervises the driving automation system.

• SAE Level 3, Conditional Driving Automation: The sustained and ODD-specific performance by an ADS of the entire DDT with the expectation that the DDT fallback-ready user is receptive to ADS-issued requests to intervene, as well as to DDT performance-relevant system failures in other vehicle systems, and will respond accordingly.

• SAE Level 4, High Driving Automation: The sustained and ODD-specific performance by an ADS of the entire DDT and DDT fallback without any expectation that a user will respond to a request to intervene.

• SAE Level 5, Full Driving Automation: The sustained and unconditional ( i.e., not ODD-specific) performance by an ADS of the entire DDT and DDT fallback without any expectation that a user will respond to a request to intervene.

Using the SAE Levels described above, the Department generally draws a distinction between Levels 0-2 and 3-5, based on whether the human driver or the automated system is primarily responsible for monitoring the driving environment. For the purposes of this ANPRM, FMCSA's primary focus is SAE Levels 4-5 because it is only at those levels where the ADS can control all aspects of the driving task, without any intervention from a human driver.

On March 26, 2018, FMCSA published “Request for Comments [RFC] Concerning Federal Motor Carrier Safety Regulations (FMCSRs) Which May Be a Barrier to the Safe Testing and Deployment of Automated Driving Systems-Equipped Commercial Motor Vehicles on Public Roads” (83 FR 12933). The document solicited public comments on existing FMCSRs that may need to be updated, modified, or eliminated to facilitate the safe introduction of ADS-equipped CMVs onto our Nation's roadways. Further, FMCSA requested comments on certain FMCSRs likely to be affected as ADS-equipped CMVs appear on our roadways, including regulations concerning hours of service (HOS) and driver fatigue, the use of electronic devices, roadside inspection, and Commercial Driver's License (CDL) requirements. The comment period ended on May 10, 2018. Interested parties can view the comments the Agency received at www.regulations.gov (docket number FMCSA-2018-0037).

On June 19, July 12, and August 24, 2018, FMCSA conducted listening sessions that provided members of the public with an opportunity to share their perspectives on ADS. Transcripts of these listening sessions may be found in the docket (FMCSA-2018-0037) for this rulemaking.

As published on October 4, 2018, “Preparing for the Future of Transportation: Automated Vehicles 3.0,” (AV 3.0) explains that the Department's role in transportation automation is to ensure the safety and mobility of the traveling public while fostering economic growth. On October 9, 2018, the Department requested public comment on the document (83 FR 50746). The comment period ended on December 3, 2018.

The Federal government will play a significant role in ensuring that automated vehicles can be safely and effectively integrated into the existing transportation system, alongside conventional vehicles, pedestrians, bicyclists, motorcyclists, and other road users.

NHTSA has broad authority over the safety of ADS-equipped vehicles and other automated vehicle technologies. NHTSA has authority to establish Federal safety standards for new motor vehicles that are introduced into interstate commerce in the United States, and to address safety defects determined to exist in motor vehicles or motor vehicle equipment used in the United States. The latter authority focuses on the obligations that Federal law imposes on the manufacturers of motor vehicles and motor vehicle equipment to notify NHTSA of safety defects in those vehicles or vehicle equipment and to remedy the defects, subject to NHTSA's oversight and enforcement authority.

The Department, through FMCSA, regulates the safety of commercial motor carriers operating in interstate commerce, the qualifications and safety of CMV drivers, and the safe operation of commercial trucks and motor coaches. FMCSA is broadly considering whether (and, if necessary, how) to amend its existing regulations to accommodate the integration of ADS into commercial vehicle operations. While some FMCSA regulatory requirements for commercial drivers (such as drug and alcohol testing requirements) have no application to ADS, many of the Agency's current regulations can be readily applied in the context of ADS-equipped CMVs.

In approaching the task of adapting its regulations to accommodate automated vehicle technologies, FMCSA is considering amendments to its rules to account for significant differences between human operators and ADS. The Agency's preliminary approach is to avoid development of an entirely separate set of rules for ADS-equipped CMVs and their operation. The Agency would rely on NHTSA to establish Federal standards, if necessary, applicable to ADS equipment manufacturers (whether of original or aftermarket equipment), while FMCSA would focus on those rules necessary to ensure that motor carriers operating ADS-equipped CMVs have a uniform regulatory framework within which to operate in interstate commerce.

In 2017, FMCSA requested that its MCSAC  1 provide recommendations to the Agency to assist with policy issues concerning the integration of ADS-equipped CMVs into the commercial fleet. During the MCSAC's June 12-13, 2017, meeting, the Agency requested (Task 17-1) that the group provide recommendations concerning the issues FMCSA should consider in ensuring that the Federal safety regulations provide appropriate standards for the safe operation of ADS-equipped CMVs, from design and development through testing and deployment. Specifically, the MCSAC was asked to consider the application of the following regulatory provisions in title 49, Code of Federal Regulations (CFR), to ADS-equipped CMV operations:

(1) Part 383, Commercial Driver's License Standards; Requirements and Penalties;

(2) Part 391, Qualifications of Drivers and Longer Combination Vehicle (LCV) Driver Instructors;

(3) Sections 392.80 and 392.82, Limiting the Use of Electronic Devices;

(4) Part 395, Hours of Service of Drivers; and

(5) Part 396, Inspection, Repair, and Maintenance.

The MCSAC completed its task during its July 30-31, 2018, meeting. A copy of the MCSAC's final report can be found at: https://www.fmcsa.dot.gov/advisory-committees/mcsac/mcsac-task-17-1-final-report.

FMCSA has initiated this rulemaking to ensure that appropriate performance-based safety requirements are in place to support the integration of ADS-equipped CMVs into the U.S. fleets. The Agency believes the private sector will continue to make significant progress in the design, testing, and deployment of ADS technology and that the integration of ADS-equipped vehicles may provide improvements in transportation safety and the efficient movement of freight and passengers.

Generally, FMCSA does not believe there is a need to revise the FMCSRs to accommodate the integration of Levels 1-3 equipment because a licensed CMV operator must be present at the controls of the vehicle at all times. FMCSA's driver-related rules would thus apply. The Agency reminds interstate motor carriers of their responsibility for having safety management controls in place to ensure the safe operation of such ADS-equipped CMVs, in full compliance with the applicable safety requirements. For example, for drivers of CMVs at Levels 1-3 (and obviously at Level 0) the Agency's CDL, controlled substances and alcohol testing, physical qualifications, driver distraction, and HOS rules would be applicable. The Agency, though, may consider guidance and other assistance that could identify best practices for safely operating vehicles with these lower-level systems, as they may present issues not present in more traditional vehicles.

By contrast, revisions to some of the Agency's rules may be needed to address situations in which the ADS technology may have complete control of the CMV under certain circumstances (Level 4) or all circumstances (Level 5). Where ADS technology is operating the vehicle within its ODD, FMCSA expects that the ADS will be capable of safely maintaining control of the CMV without the need for human intervention and that in the event of a malfunction, the ADS would be designed and equipped to revert to a fail-safe condition. This rulemaking considers what performance-based boundaries are needed to ensure that interstate motor carriers have appropriate safety management controls for the operation of ADS-equipped CMVs.

As noted in A Vision for Safety 2.0, entities, including operators and developers of ADS-equipped CMVs, are encouraged to define and document the ODD for each ADS available on their vehicle(s) tested or deployed on public roadways, as well as to document the process and procedure for assessment, testing, and validation of ADS functionality within the prescribed ODD. The ODD should describe the specific conditions under which a given ADS or feature is intended to function. The ODD defines where ( e.g., what roadway types and speeds) and when (under what conditions, such as day/night, weather limits, etc.) an ADS is designed to operate. At a minimum, the ODD would include the following information:

• Roadway types (interstate, local, etc.) on which the ADS is designed to operate safely;

• Geographic area (city, mountain, desert, etc.);

• Speed range;

• Environmental conditions in which the ADS will operate (weather, daytime/nighttime, etc.); and

• Other domain constraints.

FMCSA expects that motor carriers interested in integrating ADS-equipped CMVs into their fleets would have in-depth discussions with the technology vendors to fully understand the ODD limitations and only utilize Level 4 or 5 capabilities for the conditions for which the vehicle is intended. The Agency seeks to avoid discouraging innovation and technology development and implementation.

In addition, FMCSA requests comments on whether there are CMV types/configurations or cargoes for which fully automated operations should be restricted or prohibited ( e.g., hazardous materials, motorcoaches, multi-trailer or longer combination vehicles (LCVs), etc.). If commenters believe the Agency should consider restrictions, please explain why.

FMCSA received 98 responses to its March 2018 RFC. The majority of commenters (68) were individuals. Four developers of ADS technology (Embark, Uber, Tesla, and WAYMO) provided comments, along with two insurance organizations (the Property Casualty Insurers Association of America and The Travelers Companies, Inc.), and one trucking company safety director. Other organizations and companies providing comments include the Commercial Vehicle Safety Alliance, Amazon, the National Tank Truck Carriers, Inc., the Small Business in Transportation Coalition, the American Association of Motor Vehicle Administrators, the Ad-Hoc HAV Data Access Coalition, the National Motor Freight Traffic Association, the Community Transportation Association of America, the Competitive Enterprise Institute, the Insurance Institute for Highway Safety—Highway Loss Data Institute, the National School Transportation Association, the MITRE Corporation, the Truck and Engine Manufacturers Association, the Motor and Equipment Manufacturers Association, the Transportation Trades Department of the AFL-CIO, the American Trucking Associations, Securing America's Future Energy, the National Automobile Dealers Association, the Owner-Operator Independent Drivers Association, the Commercial Vehicle Training Association, the Trucking Alliance, Advocates for Highway and Auto Safety, and the Truck Safety Coalition.

Based on public comments received in response to the RFC and during the recent public meetings noted above, FMCSA anticipates that, near-term, Level 4 operations are likely to involve a human driver, either present in the vehicle to facilitate the transition into and out of full automation without stopping, or waiting at a designated location prepared to operate the vehicle for such transitions. Based on FMCSA's preliminary assessment of its safety requirements and the potential of ADS-equipped vehicles, the Agency believes individuals responsible for taking control of an ADS-equipped vehicle on a public road should be subject to the current driver-related rules.

FMCSA is considering a rulemaking regarding the introduction of ADS-equipped CMVs on our Nation's roadways. Below are the major issues commenters raised and FMCSA's responses, as well as other issues applicable to operators of Level 4 ADS-equipped CMVs and how these requirements could be adapted for such vehicles. To assist in development of any regulatory revisions that may be deemed necessary, the Agency requests responses to the following issues and questions. Wherever possible, commenters should provide data in support of their responses.

A Vision for Safety 2.0, issued by NHTSA in September 2017 and focusing on guidance to ADS developers and State governments, included a brief statement from FMCSA which said that, at the time, FMCSA believed that its regulations required that “a trained commercial driver must be behind the wheel at all times, regardless of any automated driving technologies available on the CMV, unless a petition for a waiver or exemption has been granted.” However, in the March 2018 RFC, FMCSA stated that it was reconsidering its views on this issue, noting, “[t]he absence of specific regulatory text requiring a driver be behind the wheel may afford the Agency the flexibility to allow, under existing regulations, ADS to perform the driver's functions in the operational design domain in which the system would be relied upon, without the presence of a trained commercial driver in the driver's seat.”

Some technology companies are developing Level 4 ADS-equipped CMVs to be operated on limited-access highways from exit-to-exit (or on-ramp to off-ramp), with no human operator in the vehicle, and, then, if necessary, operated by a human off these highways. Commenters explained that some shipping companies have distribution centers/warehouses very close to major highways, which makes this ADS operating scenario desirable from a marketing and productivity perspective. Some commenters also stated that a Level 4 ADS-equipped CMV would not operate outside of that ODD without a driver. The technology companies requested that FMCSA issue interpretive guidance or otherwise clarify that the FMCSRs, as written, do not expressly require a human driver at all times. Alternatively, technology companies noted the need for FMCSA to reexamine the definition of “driver” in the FMCSRs, specifically as it relates to ADS-equipped CMVs. Many other commenters were opposed to driverless vehicles generally but did not specifically comment regarding whether the current FMCSRs require a human driver at all times.

FMCSA Response: As announced in AV 3.0, the Department will interpret and, consistent with all applicable notice and comment requirements, adapt the definitions of “driver” and “operator” to recognize that such terms do not refer exclusively to a human, but may include an automated system. Because the regulations do not require the presence of a human driver or operator, FMCSA will interpret its regulations to no longer assume that the CMV driver is always a human or that a human is present onboard a commercial vehicle during its operation, provided that the vehicle is equipped with a Level 4 or Level 5 ADS and is operating within its ODD (in the case of Level 4).

This does not mean that ADS-equipped CMVs operate without FMCSA oversight. Rather, FMCSA is required by statute to prescribe regulations that ensure that CMVs are maintained, equipped, loaded, and operated safely. The Agency, therefore, needs to consider promulgating rules to account for ADS-equipped CMVs, including subjects such as vehicle inspection, repair and maintenance, and other areas that may emerge. In addition, until Level 5 ADS-equipped CMVs are available, human drivers and operators will continue to play a crucial role in the operation of Level 4 ADS-equipped CMVs, as those vehicles can operate without a human only within their ODDs. As such, certain requirements that apply to humans involved in the operation of these vehicles will also need to be revised. Further, FMCSA emphasizes that both the vehicles themselves and entities responsible for the operation of an ADS-equipped CMV in interstate commerce ( i.e., motor carriers) remain subject to safety oversight by the Agency, whether a human operates the vehicle or not, and FMCSA retains its authority to take enforcement action if an ADS-equipped CMV is not operated in a safe manner.

Questions: 1.1. How should FMCSA ensure that an ADS-equipped CMV only operates consistent with the ODD for the ADS equipped on the vehicle? 1.2. What are manufacturers' and motor carriers' plans for when and how Levels 4 and 5 ADS-equipped CMVs will become commercially available? 1.3. Should FMCSA consider amending or augmenting the definition of “driver” and/or “operator” in 49 CFR 390.5 or define a term such as “ADS driver” to reduce the potential for misinterpretation of the requirements?

The March 2018 RFC requested comments on whether FMCSA should require a specific endorsement for human drivers and operators of ADS-equipped CMVs to ensure they (1) understand the capabilities and limitations of the advanced technologies, and (2) know when it is appropriate to rely on automatic, rather than manual, operation. Further, if such an endorsement is required, the Agency requested comment on what types of test(s)—knowledge, skills, or both—should be required to obtain the endorsement, and whether there should be separate endorsements for different types of ADS-equipped CMVs.

Many commenters noted that it is imperative that human drivers and operators of ADS-equipped CMVs fully understand the capabilities and limitations of the advanced technologies that are deployed on vehicles they operate. Some commenters believe that in mixed-use scenarios in which a human may have to take control of a CMV from the ADS, an ADS endorsement should be required for the CDL holder. Given the wide range of technologies and ODDs in which these technologies are able to operate, some commenters expressed concern regarding whether a standardized test could be developed for an ADS CDL endorsement.

FMCSA Response: FMCSA is responsible for the establishment and enforcement of CDL requirements applicable to every person who operates a commercial motor vehicle, as defined in 49 CFR 383.5, in interstate, foreign, or intrastate commerce; to all employers of such persons; and to State Driver License Agencies (SDLAs) that issue CDLs. The Agency believes that any individual who is expected to control the ADS-equipped CMV at any time the vehicle is in operation on a public road must be fully qualified to do so. However, given the way the CDL program is administered by the Agency and the 51 SDLAs, it would be difficult to distinguish between current knowledge and skills requirements and those arguably sufficient for limited Level 4 operations.

In Level 5, the ADS technology is, by definition, capable of performing all driving functions under all conditions. In some operational models, there may be an individual responsible for remotely monitoring multiple CMVs, a scenario that is obviously not covered by the existing CDL regulations. For Level 4, however, the technology would be limited to certain ODDs, which may require the presence of a human prepared to take control as the vehicle approaches the limits of those domains. Preliminarily, the Agency is inclined to maintain the CDL rules, essentially as written, but to clarify that these rules apply to any person who may be relied upon to control any aspect of operation of the ADS-equipped vehicle on a public road.

Under the current rules, the basic CDL requires knowledge and skills tests, with additional testing required to remove certain restrictions or to obtain endorsements. The skills test, or road test, must be given in a representative vehicle. However, ADS technology is advancing rapidly, and there will continue to be a range of approaches to automation. At this time, it would be very difficult to establish uniform knowledge and/or skills tests to adequately assess a CDL holder's understanding of the vehicle's ADS and the specific operating scenarios under which human control may be needed, versus those scenarios where relying solely on the ADS is appropriate. Therefore, it is premature for the Agency to consider proposing rules in this regard. Moreover, it is also difficult at this time to estimate the costs and safety benefits of requiring an ADS endorsement for CDL holders. However, FMCSA agrees that this is a critical issue and, to the extent necessary, will work with stakeholders to provide guidance to ensure that human operators are aware of the technological capabilities of their vehicles.

Questions: 2.1. Should a CDL endorsement be required of individuals operating an ADS-equipped CMV? 2.2. If so, what should be covered in the knowledge and/or skills test associated with an ADS endorsement? 2.3. What would be the impacts on SDLAs? 2.4. Should a driver be required to have specialized training for ADS-equipped CMVs? 2.5. In an operational model that has an individual remotely monitoring multiple CMVs, should the Agency impose limitations on the number of vehicles a remote driver monitors? 2.6. Is there any reason why a dedicated or stand-by remote operator should not be subject to existing driver qualifications?

Given that the FMCSRs include limitations on the number of hours that a driver may drive during a day and a week to reduce the risk of driver fatigue and fatigue-related crashes, FMCSA requested comments on how drivers' HOS should be recorded if the ADS is relied on to perform some or all of the driving tasks otherwise performed by a human driver.

Commenters stated that the HOS rules should not be applicable for operating scenarios where the ADS technology controls the CMV and there is no human present because there would be no limit on the number of hours the ADS technology could operate the vehicle. However, for scenarios in which a human is needed to operate the vehicle for a portion of a given trip, commenters asked how the HOS rules would apply to the human operator.

FMCSA Response: The FMCSRs include limits on the amount of driving time during a work shift and prohibit individuals from operating CMVs after the individual has accumulated 15 hours of on-duty time (for drivers of passenger-carrying CMVs), or after the 14th hour from the beginning of the work day (for drivers of property-carrying CMVs). Drivers of passenger-carrying vehicles are limited to 10 hours of driving time during the work shift and drivers of property-carrying vehicles to 11 hours of driving time during the work shift.

Drivers of passenger-carrying vehicles must have at least 8, and drivers of property-carrying vehicles at least 10, consecutive hours off-duty at the end of the work shift. Drivers of CMVs are prohibited from driving after accumulating 60 hours of on-duty time within 7 consecutive days (60-hour rule) or 70 hours of on-duty time within 8 consecutive days (70-hour rule). Drivers of property-carrying vehicles, however, may restart weekly calculations at any time after taking 34 consecutive hours off-duty.

The Agency believes, preliminarily, that the basic approach for applying the HOS rules should continue to be used; that is, any time a human is at the controls of an ADS-equipped CMV, either in the driver's seat or operating it remotely, the time should be recorded as on-duty, driving. Any time the human is working without having the responsibility for taking control of the ADS-equipped vehicle (because it is operating in a fully autonomous mode within its intended ODD) should be considered on-duty, not driving. For scenarios in which the human is in a sleeper-berth on a vehicle controlled by ADS technology, the human may record his/her duty status in the same manner as a team driver with hours off-duty in the passenger seat or sleeper-berth time. The Agency welcomes comments on whether these preliminary regulatory approaches are appropriate or whether other structures are preferable.

Questions: 3.1. Should HOS rule changes be considered if ADS technology performs all the driving tasks while a human is on-duty, not driving; off-duty or in the sleeper berth; or physically remote from the CMV? 3.2. Should the HOS requirements apply to both onboard and remote operators? 3.3. If so, how should HOS be recorded when an individual is not physically in control of the vehicle?

The FMCSRs include physical qualification standards for humans driving CMVs to ensure that they are medically qualified to do so. In the RFC, FMCSA requested comment on what medical conditions that currently preclude medical qualification (1) could become inapplicable as ADS technology develops, and (2) should not be considered disqualifying for a human driver who is simply monitoring an ADS-equipped CMV.

Several commenters believe FMCSA's current medical requirements for drivers/operators of CMVs should apply when individuals have the responsibility for driving an ADS-equipped CMV. They indicated that for the non-driving tasks (Levels 4-5), further study is needed before considering potential changes to the associated medical requirements.

FMCSA Response: FMCSA's regulations in 49 CFR part 391 include physical qualifications standards for individuals operating CMVs, as defined in 49 CFR 390.5. Such standards were originally established in the late 1930s and have been modified significantly since that time. The Agency also provides advisory criteria for use by healthcare professionals in making the determination whether a driver with certain medical conditions should be issued a medical certificate. Based on FMCSA's preliminary assessment of its safety requirements and the potential of ADS-equipped vehicles, the Agency presently believes individuals responsible for taking control of an ADS-equipped vehicle on a public road should be subject to the current physical qualification standards.

Questions: 4.1. Should some of the physical qualification rules be eliminated or made less stringent for humans remotely monitoring or potentially controlling ADS-equipped CMVs? 4.2. If so, which of the requirements should be less restrictive for human operators who would take control of an ADS-equipped CMV remotely? 4.3. Should the Agency consider less restrictive rules for humans who have the benefit of ADS technology to assist them in controlling the vehicle ( e.g., technologies that would enable individuals with limb impairments to operate at a level comparable to individuals without such impairments)?

The FMCSRs prohibit individuals from texting and using hand-held wireless phones while driving CMVs in interstate commerce. In the RFC, FMCSA requested comment regarding what changes, if any, should be made to the distracted driving regulations for human operators of ADS-equipped CMVs operating in an automated mode.

Some commenters believe changes to regulations would depend on the SAE Level designation of the vehicle, its operational capabilities, and the role of the driver in safe operation. Commenters also believe that if a human is present and responsible for the safe operation of the CMV, current restrictions against distraction should remain in effect.

FMCSA Response: Sections 392.80 and 392.82 of the FMCSRs prohibit individuals from texting and using handheld wireless phones, respectively, while driving CMVs in interstate commerce. A CDL holder, whether operating in interstate, foreign, or intrastate commerce, may also be disqualified for violating State or local laws on texting and use of handheld phones (49 CFR 383.51(c), Table 2, paragraph 10). The regulations do not provide an exception for individuals who are in the driver's seat but have chosen to rely on advanced technologies such as lane departure warning systems, collision avoidance systems, etc. From the above, the requirements related to distracted driving set forth in the FMCSRs apply to human operators of ADS-equipped CMVs, and such operators must remain focused on their duties. While FMCSA is inclined to believe it will remain appropriate to require human operators to comply with all existing regulations concerning distraction while operating ADS-equipped CMVs, the Agency welcomes comments regarding distraction and whether FMCSA should consider amending the rules regarding distraction for cases where an onboard or remote human operator is not actively controlling a Level 4 or 5 ADS-equipped CMV.

Question: 5.1. How should the prohibition against distracted driving ( i.e., texting, hand-held cell phone) apply to onboard operators responsible for taking control of the CMV under certain situations, and to remote operators with similar responsibilities?

FMCSA's controlled substances and alcohol testing requirements in 49 CFR part 382 are intended to prevent crashes and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of CMVs. The rules include requirements for pre-employment drug testing, random alcohol and drug tests, post-crash testing, reasonable suspicion testing, and, for individuals that have tested positive for the misuse of alcohol or use of controlled substances, return-to-duty testing.

Part 392 of the FMCSRs includes requirements for and prohibitions against certain actions of CMV drivers. For example, the rules require drivers to obey the laws, ordinances, and regulations of the jurisdiction in which the CMV is operated and prohibit drivers from operating a CMV while ill or fatigued. Drivers are also prohibited from possessing or being under the influence of drugs or alcohol while on-duty. The regulations also cover matters such as the inspection of cargo and cargo securement devices and systems during trips and procedures for travelling through railroad crossings.

FMCSA did not specifically request comment on these issues in the RFC. However, the Agency believes preliminarily that these rules should continue to apply to any human who is expected to take control of the operation of the ADS-equipped CMV while it is on a public road.

Questions: 6.1. Should FMCSA consider revising its rules to ensure that (1) any human exercising control of an ADS-equipped vehicle must continue to comply with all the rules under Part 392, and (2) a CMV under the control of a Level 4 or Level 5 ADS must satisfy the operational rules? 6.2. For example, should FMCSA require that the ADS be capable of identifying highway-rail grade crossings and stopping the CMV prior to crossing railroad tracks to avoid collisions with trains, or going onto a highway-rail grade crossing without having sufficient space to travel completely through the crossing without stopping? 6.3. For scenarios in which the control of the ADS-equipped CMV alternates, or may alternate, between a human and the technology, should FMCSA require that both the human operator and ADS comply with the applicable operational rules?

The FMCSRs require all CMVs to be systematically inspected, repaired, and maintained, all parts to be in safe and proper operating condition at all times, and each vehicle to pass an inspection at least once every year. In the RFC, FMCSA requested comments regarding how motor carriers will be able to ensure the proper functioning of ADS prior to operating in automated mode, whether motor carrier personnel responsible for maintaining ADS equipment should be required to have a minimum level of training, and what types of malfunctions or damage on an ADS-equipped CMV would be considered an imminent hazard.

Commenters stated that safety rules should require that ADS include self-diagnostic capabilities and reporting for critical subsystems as well as for the full ADS itself. They also believe the Department should establish minimum performance or equipment criteria, and test procedures for self-certification and marking of ADS-equipped vehicles. Commenters also stated that individuals responsible for maintaining the ADS equipment should have minimum training and certification.

FMCSA Response: The FMCSRs include requirements for motor carriers to have systematic inspection, repair and maintenance programs for their CMVs and to maintain certain records documenting the types of maintenance performed. Drivers are required to prepare reports of any defects or deficiencies discovered by or reported to them during the work shift and the motor carrier is responsible for taking appropriate actions after receiving such reports, but before the vehicle is dispatched again.

In addition, a comprehensive inspection of CMVs must be conducted at least once every 12 months based on a checklist provided in Appendix G to the FMCSRs and proof of the annual inspection must be maintained on the CMV.

FMCSA prescribes minimum qualifications for individuals conducting the annual inspection if the inspection is not conducted in accordance with a State inspection program that FMCSA considers comparable to the Federal requirements. FMCSA also prescribes minimum qualifications for motor carrier employees responsible for brake-related inspection, repair and maintenance tasks.

FMCSA believes that motor carriers must have appropriate inspection, repair and maintenance programs to ensure that any ADS-equipped CMVs they dispatch are capable of operating safely. This means the CMV must be capable of performing within its ODD. Recognizing that the advanced safety systems used in Level 4 and 5 ADS-equipped CMVs will rely heavily on advanced software programs that will invariably be subject to periodic updates and revision, it will be critical for motor carriers to establish a system to ensure that all vehicles are using the most up-to-date version of safety-critical software.

FMCSA believes it is appropriate to consider amending part 396 to provide clear guidance to motor carriers dispatching Level 4 and Level 5 ADS-equipped CMVs that would operate on a public road. At a minimum, the Agency believes consideration should be given to require:

• Pre-trip inspections before dispatching ADS-equipped CMVs;

• A means for en route inspection for cargo securement devices to ensure proper tension—currently the driver is required to check the devices, but there may be alternative solutions based on improved technology;

• Post-trip inspection requirements, which may vary depending on the sensors and detectors, to identify mechanical/electrical problems that may or may not be related to the ADS technology;

• Periodic or annual inspection of ADS technology.

Consistent with the current FMCSRs concerning qualifications of individuals conducting the annual inspection of CMVs and brake-related inspection, repair, and maintenance tasks on CMVs, the Agency is considering the adoption of similar requirements for motor carrier personnel responsible for ADS-related inspection, repair and maintenance tasks.

Questions: 7.1. What qualifications should be required of the individual performing the pre-trip inspection? 7.2. What kind of routine or scheduled inspections should be performed and what types of ADS-related maintenance records should be required? 7.3. Should the inspection period be more or less frequent than annual for an ADS-equipped CMV? 7.4. Should inspections be mileage-based or time-based ( e.g., 1,000 miles, 3 months or 1,000 hours of operation)? 7.5. Should FMCSA impose general requirements for motor carrier personnel responsible for ADS-related inspection, repair, and maintenance tasks similar to the Agency's brake inspector qualification requirements? 7.6. How could FMCSA ensure that motor carriers apply safety-critical software updates?

FMCSA and its State partners conduct roadside inspections of CMVs to identify and remove unsafe drivers and vehicles from service. In the RFC, FMCSA requested comment regarding how an enforcement official will be able to identify CMVs capable of various levels of automated operation, i.e., should ADS-equipped CMVs be visibly marked to indicate the level of automated operation they are designed to achieve.

Although commenters did not state that ADS-equipped CMVs should be subject to a greater level of scrutiny than CMVs operated by humans during roadside inspections, some believed ADS-equipped CMVs should be marked in a manner visible to enforcement personnel, or have some form of electronic vehicle identification to facilitate inspections. Some commenters believe that ADS-equipped vehicles should have malfunction indicators to identify problems in the event there is a roadside inspection.

FMCSA Response: The FMCSRs include requirements for truck and bus parts and accessories necessary for safe operations on public roads. The requirements are provided under 49 CFR part 393. To the extent there are Federal Motor Vehicle Safety Standards (FMVSSs) under 49 CFR part 571 to cover the safety equipment or features, FMCSA cross-references those NHTSA requirements applicable to the vehicle and equipment manufacturers. Through the cross-reference, FMCSA imposes on the motor carriers the responsibility for maintaining the safety equipment and features that NHTSA required the vehicle manufacturers to install.

Currently, neither the FMVSSs nor the FMCSRs include technical requirements specific to ADS technology. There are no ADS-specific Federal performance standards that manufacturers must satisfy for operation in a fully autonomous mode. However, the Agency expects that ADS technology companies will generally follow the Department's voluntary guidance and conduct thorough safety assessments.

FMCSA believes that certain regulatory requirements should be considered to ensure that motor carriers using ADS-equipped CMVs have clear Federal direction for safe operations, irrespective of manufacturers' voluntary safety assessments. FMCSA expects vehicle manufacturers or ADS technology companies to provide motor carriers with a form of self-certification of the capabilities of the ADS technology, based on completion of the voluntary safety assessment. The certification would enable the motor carrier to understand the ODD limitations of the ADS technology. FMCSA also preliminarily anticipates that Level 4 and 5 ADS-equipped vehicles would be marked to enable identification by Federal and State personnel, if there are no other visible indicators ( e.g., the absence of a driver's seat and steering wheel). While marking of vehicles to identify the ADS Level of capability would enable Federal and State personnel, motor carriers and drivers to know which vehicles can operate safely without a human at the controls under certain ODDs ( i.e., Level 4), or under any operating conditions ( i.e., Level 5), identification of the vehicle-specific ODD would likely need to be conveyed separately, through the self-certification based on the voluntary safety assessment.

Roadside inspectors must be able to verify that ADS components are functioning properly. This could be accomplished through a system validation indicator that allows confirmation that the ADS systems are working to full capacity, or through individual malfunction indicators that would let enforcement officials know that a particular subsystem has a fault or defect and that maintenance is needed. The faults or defects might not be critical to safety but suggest that repairs should be made before the vehicle is dispatched again. Malfunction indicators are a routine requirement under both the FMVSSs and FMCSRs ( e.g., the antilock brake system malfunction indicator required under FMVSS Nos. 105 and 121 and section 393.55 of the FMCSRs). FMCSA believes requirements for such indicators should be considered to alert motor carrier maintenance personnel as well as Federal and State enforcement officials whether the ADS is fully operational or in need of repair. Motor carriers would then know whether a human must maintain full control of the vehicle and drive it as if there were no ADS technology, or whether the ADS may be relied on as the manufacturer intended it to be used.

Given the many scenarios an ADS-equipped vehicle may encounter on a public road, FMCSA preliminarily believes it would be appropriate to require that the ADS-equipped vehicle, like a human driver, have a means of detecting emergency vehicles such as police, fire, and rescue, and moving out of the path of first responders, as well as taking appropriate action while driving through work-zones.

In addition to basic safety requirements for ADS technology, the Agency is considering enforcement tolerances that could be used by Federal and State enforcement personnel to identify the levels of non-compliance that would warrant placing an ADS-equipped CMV out of service until the problem is corrected.

FMCSA acknowledges that Federal and State enforcement officials may need further training to identify problems with ADS-equipped CMVs, but it is not the Agency's goal to have these officials be responsible for conducting diagnostic tests of a CMV's ADS. FMCSA would discourage inspectors from delaying the movement of ADS-equipped CMVs unless there are clear indications of safety-critical CMV violations and/or ADS faults or malfunctions. FMCSA would work with the private sector and State safety agencies to develop enforcement tolerances for use in determining whether certain faults or malfunctions warrant placing the ADS-equipped CMV out of service.

Questions: 8.1. Should motor carriers be required to notify FMCSA that they are operating Level 4 or 5 ADS-equipped CMVs? 8.2. If so, how should the carrier notify FMCSA? 8.3. Should FMCSA require markings identifying the ADS Level of a vehicle? 8.4. Should the Agency require motor carriers to utilize ADS-equipped CMVs that have a malfunction indicator? 8.5. Should the Agency require that motor carriers deploying ADS-equipped CMVs ensure the vehicle can pull over in response to Federal and State officials or move out of the way of first-responders? 8.6. How might that be achieved, and at what cost? 8.7. How would roadside enforcement personnel know that a vehicle can no longer operate safely? 8.8. Absent an FMVSS, how could standard indications be provided to enforcement personnel?

Numerous commenters expressed concerns regarding cybersecurity and hacking of ADS-equipped CMVs and recommended that vehicle data access be protected against hacking through recognized principles of data security by design.

FMCSA Response: ADS technologies depend on an array of electronics, sensors, and computer systems. In advancing these features and exploring the safety benefits of these new vehicle technologies, FMCSA and NHTSA are focused on strong cybersecurity to ensure these systems work as intended and are built to mitigate safety and security risks. To ensure a comprehensive cybersecurity environment, NHTSA has adopted a multi-faceted research approach that leverages the National Institute of Standards and Technology's (NIST) Cybersecurity Framework, and encourages industry to adopt practices that improve the cybersecurity posture of their vehicles in the U.S. 2 FMCSA will work with NHTSA and the automotive industry to proactively address vehicle cybersecurity challenges and to continuously seek methods to mitigate the associated safety risks.

Questions: 9.1. What types of safety and cargo security risks may be introduced with the integration of ADS-equipped CMVs? 9.2. What types of rules should FMCSA consider to ensure that motor carriers' safety management practices adequately address cybersecurity?

FMCSA acknowledges that companies may be reluctant to share certain proprietary data or information with the Agency. While FMCSA notes that 49 CFR 389.9 provides certain protections for “confidential business information,” which includes trade secrets or commercial or financial information that is privileged or confidential, the RFC requested comment regarding what measures original equipment manufacturers and technology developers expect of FMCSA before sharing confidential business information. Additionally, FMCSA requested comments on how the Agency might obtain information sufficient to assess the safety performance of ADS-equipped CMVs without collecting confidential business information.

Several commenters stated that they expect FMCSA to establish standards/regulations concerning access to proprietary safety information regarding certain components that directly relate to safety-sensitive functions. They believe NHTSA, FMCSA, and other DOT agencies should work with the private sector to obtain critical safety-related information that may be proprietary. Commenters also believe that these DOT agencies should seek confidentiality agreements to ensure Federal and State enforcement agencies' access to safety data associated with the performance of ADS systems, while protecting the ADS developers' proprietary information.

FMCSA Response: The Agency has established procedures to protect confidential business information submitted as part of a rulemaking (49 CFR 389.9). Additionally, FMCSA will work with motor carriers, manufacturers, and developers to ensure, to the greatest extent practicable, the protection of sensitive data relating to the design, testing, production, and marketing of ADS or proprietary information submitted in response to an Agency request. Unless required by law, FMCSA will not unilaterally or proactively release confidential business information to the public.

Questions: 10.1. As the development of ADS technology continues, the Agency believes there is a need to learn about the performance limitations of these systems. FMCSA draws a distinction between information about performance limitations ( e.g., how well does the ADS keep the vehicle in its lane and under what environmental conditions, etc.) and details about the system design ( e.g., the specific types of sensors, or the arrays of sensors and cameras used for input to the central processing unit for the ADS). To what extent do ADS developers believe performance data should be considered proprietary and withheld from the public? 10.2. Are the Agency's current processes under 49 CFR 389.9 for submission and protection of confidential business information in the context of a rulemaking sufficient to allow ADS developers and motor carriers to communicate essential information to the Agency regarding the operation of ADS? 10.3. If not, how should those processes be modified?

As noted above, FMCSA would like to build upon best practices from the private sector in providing guidance to motor carriers on safe practices for the integration of ADS-equipped CMVs. The Agency would consider use of private sector standards to ensure cost-effective, performance-based safety requirements.

OMB's revised Circular A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” (81 FR 4673), states that “. . . the effectiveness of the U.S. standards system in enabling innovation depends on continued private sector leadership and engagement.” Circular A-119 is intended to encourage Federal agencies to benefit from the expertise of the private sector, promote Federal agency participation in standards bodies to support the creation of standards that are useable by Federal agencies, and minimize reliance on government-unique standards or regulations where an existing standard would meet the Federal government's objectives.

One of the primary means that FMCSA uses to fulfill the intent of Circular A-119 is to incorporate by reference certain voluntary standards. For example, under 49 CFR 393.7, Matter incorporated by reference, FMCSA adopted several private-sector standards concerning vehicle safety equipment required on CMVs operated in interstate commerce. Rather than crafting and imposing Federal standards or requirements where voluntary consensus standards were followed by the majority of parties, the Agency adopted the private-sector standards by reference. As a result, the Agency can enforce the referenced standards as part of the FMCSRs. Specific areas where such references are used for regulatory requirements include lamps and reflectors for CMVs that were not subject to NHTSA's FMVSS No. 108 (49 CFR 571.108) and standards for cargo securement devices ( e.g., chains, synthetic webbing, wire rope, cordage, etc.). FMCSA thus allowed companies following industry best practices to simply continue operating as usual.

Because of the advances in ADS technology, FMCSA's preferred approach to adopting safety requirements at this time is to rely on the development of consensus standards, whenever practicable. Voluntary standards offer flexibility and responsiveness to the rapid pace of innovation, can encourage investment and bring cost-effective innovation to the market more quickly, and may be validated by private sector conformity assessment and testing protocols. The Department supports the development and continuing evolution of stakeholder-driven voluntary standards, which in many cases can be an effective non-regulatory means to support interoperable integration of technologies into the transportation system. The Department, for example, has already adopted SAE's terminology for automated vehicles, including the levels of automation. The Agency requests public comment on the extent to which the private sector has developed consensus standards that the Agency could reference, if necessary, to ensure motor carriers have appropriate guidance on the safety management practices they should have in place to operate ADS-equipped vehicles safety.

FMCSA is responsible for the administration of the MCSAP, a Federal grant program that provides financial assistance to States to reduce the number and severity of CMV-related crashes and hazardous materials incidents. The goal of the MCSAP is to improve CMV safety through consistent, uniform, and effective CMV safety programs. The MCSAP regulations (49 CFR part 350) include conditions for participation by States and local jurisdictions and promote the adoption and uniform enforcement of State safety rules, regulations, and standards that are compatible with the FMCSRs and the Hazardous Materials Regulations (HMRs) issued by the Pipeline and Hazardous Materials Safety Administration, for both interstate, foreign, and intrastate motor carriers and drivers.

Section 350.331 requires participating States to conduct reviews of their laws and regulations for compatibility with the Federal safety rules and HMRs and to report the results of that review in their Commercial Vehicle Safety Plans. The regulation also requires participating States to amend their laws or regulations to make them compatible with the FMCSRs and/or HMRs within three years of the effective date of any newly enacted regulations.

In the event FMCSA amends the FMCSRs to adopt rules concerning the operation of ADS-equipped CMVs, FMCSA anticipates its State partners would adopt compatible rules. Through this rulemaking, FMCSA discourages States from adopting more stringent rules concerning ADS, which could interfere with interstate commerce.

1.1. Should FMCSA establish a rule that would prohibit an ADS-equipped CMV from operating outside its designated ODD?

1.2. What are manufacturers' and motor carriers' plans for when and in what way Level 4 and 5 ADS-equipped CMVs will become commercially available?

1.3. Should FMCSA consider amending or augmenting the definition of “driver” and/or “operator” provided in 49 CFR 390.5 or define a term such as “ADS driver” to reduce the potential for misinterpretation of the requirements?

2.1. Should a CDL endorsement be required of individuals operating an ADS-equipped CMV?

2.2. If so, what should be covered in the knowledge and/or skills test associated with an ADS endorsement?

2.3. What would be the impacts on SDLAs?

2.4. Should a driver be required to have specialized training for ADS-equipped CMVs?

2.5. In an operational model that has an individual remotely monitoring multiple CMVs, should the Agency impose limitations on the number of vehicles a remote driver monitors?

2.6. Should a dedicated or stand-by remote operator be subject to existing driver qualifications?

3.1. Should HOS rule changes be considered if ADS technology performs all the driving tasks while a human is off-duty or in the sleeper berth, or physically remote from the CMV?

3.2. Should the HOS requirements apply to both onboard and remote operators?

3.3. If so, how should HOS be recorded when an individual is not physically in control of the vehicle?

4.1. Should some of the physical qualification rules be eliminated or made less stringent for humans remotely monitoring or potentially controlling ADS-equipped CMVs?

4.2. If so, which of the requirements should be less restrictive for human operators who would take control of an ADS-equipped CMV remotely?

4.3. Should the Agency consider less restrictive rules for humans who have the benefit of ADS technology to assist them in controlling the vehicle ( e.g., technologies that would enable individuals with limb impairments to operate at a level comparable to individuals without such impairments)?

5.1. How should the prohibition against distracted driving apply to onboard operators responsible for taking control of the CMV under certain situations, and to remote operators with similar responsibilities?

6.1. Should FMCSA consider revising its rules to ensure that (1) any human exercising control of an ADS-equipped vehicle must continue to comply with all the rules under Part 392, and (2) a CMV under the control of a Level 4 or Level 5 ADS must satisfy the operational rules?

6.2. For example, should FMCSA require that the ADS be capable of identifying highway-rail grade crossings and stopping the CMV prior to crossing railroad tracks to avoid collisions with trains, or going onto a highway-rail grade crossing without having sufficient space to travel completely through the crossing without stopping?

6.3. For scenarios in which the control of the ADS-equipped CMV alternates, or may alternate, between a human and the technology, should FMCSA require that both the human operator and ADS comply with the applicable operational rules?

7.1. If so, what qualifications should be required of the individual performing the inspection?

7.2. What kind of routine or scheduled inspections should be performed and what types of ADS-related maintenance records should be required?

7.3. Should the inspection period be more frequent than annual for an ADS-equipped CMV?

7.4. Should inspections be mileage-based or time-based ( e.g., 1,000 miles, 3 months or 1,000 hours of operation)?

7.5. Should FMCSA impose general requirements for motor carrier personnel responsible for ADS-related inspection, repair, and maintenance tasks similar to the Agency's brake inspector qualification requirements?

7.6. How could FMCSA ensure that motor carriers apply available after-market software updates?

8.1. Should motor carriers be required to notify FMCSA that they are operating Level 4 or 5 ADS-equipped CMVs?

8.2. If so, how should the carrier notify FMCSA?

8.3. Should FMCSA require markings identifying the ADS Level of a vehicle?

8.4. Should the Agency require motor carriers to utilize ADS-equipped CMVs that have a malfunction indicator?

8.5. Should the Agency require that motor carriers deploying ADS-equipped CMVs ensure the vehicle can pull over in response to Federal and State officials or move out of the way of first-responders?

8.6. How might that be achieved, and at what cost?

8.7. How would roadside enforcement personnel know that a vehicle can no longer operate safely?

8.8. Absent an FMVSS, how could standard indications be provided to enforcement personnel?

9.1. What types of safety and cargo security risks may be introduced with the integration of ADS-equipped CMVs?

9.2. What types of rules should FMCSA consider to ensure that motor carriers safety management practices adequately address cybersecurity?

10.1. As the development of ADS technology continues, the Agency believes there is a need to learn about the performance limitations of these systems. FMCSA draws a distinction between information about performance limitations ( e.g., how well does the ADS keep the vehicle in its lane and under what environmental conditions, etc.) and details about the system design ( e.g., the specific types of sensors, or the arrays of sensors and cameras used for input to the central processing unit for the ADS). To what extent do ADS developers believe performance data should be considered proprietary and withheld from the public?

10.2. Are the Agency's current processes under 49 CFR 389.9 for submission and protection of confidential business information in the context of a rulemaking sufficient to allow ADS developers and motor carriers to communicate essential information to the Agency regarding the operation of ADS?

10.3. If not, how should those processes be modified?

Issued under authority delegated in 49 CFR 1.87.

NMFS manages the Pacific sardine fishery in the U.S. exclusive economic zone (EEZ) off the Pacific coast (California, Oregon, and Washington) in accordance with the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The FMP and its implementing regulations require NMFS to set annual catch levels for the Pacific sardine fishery based on the annual specification framework and control rules in the FMP. These control rules include the harvest guideline (HG) control rule, which, in conjunction with the overfishing limit (OFL) and acceptable biological catch (ABC) rules in the FMP, are used to manage harvest levels for Pacific sardine, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq.

During public meetings each year, the NMFS Southwest Fisheries Science Center (SWFSC) presents the estimated biomass for Pacific sardine to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC). The Team, Subpanel and SSC review the biomass and the status of the fishery, and recommend applicable catch limits and additional management measure. Following Council review and public comment, the Council adopts a biomass estimate and recommends catch limits and any in-season accountability measures to NMFS. NMFS publishes annual specifications in the Federal Register to establish these catch limits and management measures for each Pacific sardine fishing year. This rule proposes the Council's recommended catch limits for the 2019-2020 fishing year, as well as management measures to ensure that harvest does not exceed those limits, and adoption of an OFL and ABC that take into consideration uncertainty surrounding the current estimate of biomass for Pacific sardine.

According to the FMP, the catch limit for the principal commercial fishery is determined using the FMP-specified HG formula. The HG formula in the CPS FMP is HG = [(Biomass-CUTOFF) * FRACTION * DISTRIBUTION] with the parameters described as follows:

1. Biomass. The estimated stock biomass of Pacific sardine age one and above. For the 2019-2020 management season, this is 27,547 metric tons (mt).

2. CUTOFF. This is the biomass level below which no HG is set. The FMP established this level at 150,000 mt.

3. DISTRIBUTION. The average portion of the Pacific sardine biomass estimated in the EEZ off the Pacific coast is 87 percent.

4. FRACTION. The temperature-varying harvest fraction is the percentage of the biomass above 150,000 mt that may be harvested.

As described above, the Pacific sardine HG control rule, the primary mechanism for setting the annual directed commercial fishery catch limit, includes a CUTOFF parameter, which has been set as a biomass level of 150,000 mt. This amount is subtracted from the annual biomass estimate before calculating the applicable HG for the fishing year. Since this year's biomass estimate is below that value, the formula results in an HG of zero, and no Pacific sardine are available for the primary directed commercial fishery during the 2019-2020 fishing season. This would be the fifth consecutive year that the primary directed commercial fishery is closed.

At the April 2019 Council meeting, the Council's SSC approved, and the Council adopted, the SWFSC's “Assessment of the Pacific Sardine Resource in 2019 for U.S. Management in 2019-2020”, available here: https://www.pcouncil.org/wp-content/uploads/2019/04/E3_Supp_Att1_REVISED_Sardine_Assessment_Update_Review_Draft-full-version-electronic-only-DO-NOT-PRINT.pdf. The resulting Pacific sardine biomass estimate of 27,547 mt was adopted as the best scientific information available for setting harvest specifications. Based on recommendations from its SSC and other advisory bodies, as well as the OFL and ABC control rules in the CPS FMP, the Council recommended, and NMFS is proposing, an OFL of 5,816 mt, an ABC of 4,514 mt, an annual catch limit (ACL) of 4,514 mt, and a prohibition on commercial Pacific sardine catch, unless it is harvested as part of the live bait, tribal, or minor directed fisheries, or as incidental catch in other fisheries. The Council also recommended an annual catch target (ACT) of 4,000 mt for the 2019-2020 fishing year. In conjunction with setting an ACT, the Council also recommended inseason and other management measures to ensure harvest opportunity under the ACT throughout the year (see below).

The proposed annual harvest limits and management measures were developed in the context of information, which has been communicated to the Council, that the sardine biomass has also declined below its minimum stock size threshold (MSST) of 50,000 mt defined in the CPS FMP. NMFS is in the process of reviewing the 2019 stock assessment (see ADDRESSES ), and depending on the outcome of that review, might officially change the status of the Pacific sardine stock to overfished. Because the Council accepted that the biomass is below the 50,000 mt MSST, the FMP requires that incidental catch of sardine in other CPS fisheries be limited to an incidental allowance of no more than 20 percent by weight (instead of a maximum of 40 percent allowed when below the CUTOFF but above the MSST) and that incidental catch of live bait be limited to no more than 15 percent by weight.

The Secretary is currently reviewing Amendment 17 to the CPS FMP, as recommended by the Council. Amendment 17, if approved, would remove the FMP's pre-specified 15 percent incidental landing limit that becomes effective for live bait if a stock managed under the CPS FMP becomes overfished. Therefore, Amendment 17 would provide flexibility to allow directed live bait fishing for Pacific sardine when Pacific sardine is overfished, provided that any such fishing is consistent with regulations and any rebuilding plan for the stock. NMFS published a Notice of Availability on Amendment 17 in the Federal Register on March 22, 2019 (84 FR 10768), and is soliciting public comments through May 21, 2019. Because Amendment 17 is still under Secretarial review, NMFS advised the Council to recommend management measures for the 2019-2020 fishing year that match the status quo FMP provisions ( i.e., no directed live bait for overfished stocks and 15 percent maximum incidental limit on live bait for overfished stocks) and if desired, state its intent to use the provision of Amendment 17 ( i.e., allow directed live bait for overfished stocks with no predetermined limits) if it is approved. Therefore, the Council's recommended management measure on live bait (see #1 below) differs depending on NMFS' forthcoming determination on Amendment 17. The statutory deadline for NMFS to make a decision to approve, disapprove, or partially approve Amendment 17 is June 20, 2019, however NMFS expects to make the decision prior to issuing the final rule for the 2019-20120 Pacific sardine harvest specifications.

The following are the proposed management measures and inseason accountability measures for the Pacific sardine 2019-2020 fishing year:

(1) If the Secretary of Commerce approves Amendment 17, then directed live bait fishing for sardine will be permitted and will be subject to accountability measures specified under number 2 below. If Amendment 17 is not approved, then live bait landings will be limited to the 15-percent maximum allowed by the current CPS FMP and will still be subject to accountability measures specified under number 2 below;

(2) If landings in the live bait fishery reach 2,500 mt, NMFS will institute a 1-mt per trip limit of sardine to the live bait fishery;

(3) A 20-percent incidental per landing by weight catch allowance will be applied to other CPS primary directed commercial fisheries ( e.g., Pacific mackerel);

(4) A 2-mt per trip incidental catch allowance will be applied to non-CPS fisheries; and

(5) If the ACT of 4,000 mt is attained, NMFS will institute a 1-mt per trip limit of sardine to live bait, and a 1-mt per trip limit of incidentally-caught sardine when caught with other CPS.

All sources of catch including any exempted fishing permit (EFP) set-asides, the live bait fishery, and other minimal sources of harvest, such as incidental catch in CPS and non-CPS fisheries, and minor directed fishing, will be accounted for against the ACT.

The NMFS West Coast Regional Administrator would publish a notice in the Federal Register to announce when catch reaches the incidental limits as well as any changes to allowable incidental catch percentages. Additionally, to ensure that the regulated community is informed of any closure, NMFS would make announcements through other means available, including emails to fishermen, processors, and state fishery management agencies.

In each of the previous 7 fishing years, the Quinault Indian Nation requested, and NMFS approved, a set-aside for the exclusive right to harvest Pacific sardine in the Quinault Usual and Accustomed Fishing Area off the coast of Washington State, pursuant to the 1856 Treaty of Olympia (Treaty with the Quinault). For the 2019-2020 fishing year, the Quinault Indian Nation has not requested a tribal set-aside and therefore none is proposed.

At the April 2019 meeting, the Council also voted in support of two EFP proposals requesting an exemption from the prohibition to directly harvest Pacific sardine. This action accounts for NMFS approval of up to 405 mt of the ACL to be harvested under EFPs.

This action must be effective by July 1, 2019. Otherwise the fishery will open without any catch limits or restrictions in place. In order to ensure that these harvest specifications are effective in time for the start of the July 1 fishing year, NMFS will solicit public comments on this proposed rule for 15 days rather than the standard 30 days. A 15-day comment period has been the practice since the 2015-2016 fishing year when the primary directed fishery for sardine was first closed. NMFS received the recommendations from the Council that form the basis for this rule only last month. The subject of this proposed rule—the establishment of the reference points—is considered a routine action, because they are calculated annually based on the framework control rules in the FMP. Additionally, the Council provides an opportunity for public comment each year at its April meeting before adopting the recommended harvest specifications and management measures for the proceeding fishing year.

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

This proposed rule is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with the tribal representative on the Council who has agreed with the provisions that apply to tribal vessels.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities, for the following reasons:

For Regulatory Flexibility Act (RFA) purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business 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 million for all its affiliated operations worldwide.

The purpose of this proposed rule is to conserve the Pacific sardine stock by preventing overfishing, while still allowing harvest opportunity among differing fishery sectors. This will be accomplished by implementing the 2019-2020 annual specifications for Pacific sardine in the U.S. EEZ off the Pacific coast. The small entities that would be affected by the proposed action are the vessels that would be expected to harvest Pacific sardine as part of the West Coast CPS small purse seine fleet if the fishery were open, as well as fishermen targeting other CPS, sardine for live bait, or sardine in the minor directed fishery. In 2014, the last year that a directed fishery for Pacific sardine was allowed, there were approximately 81 vessels permitted to operate in the directed sardine fishery component of the CPS fishery off the U.S. West Coast; 58 vessels in the Federal CPS limited entry fishery off California (south of 39° N lat.); and a combined 23 vessels in Oregon and Washington's state Pacific sardine fisheries. The average annual per vessel revenue in 2014 for those vessels was well below the threshold level of $11 million; therefore, all of these vessels are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule is considered to equally affect all of these small entities in the same manner. Therefore, this rule would not create disproportionate costs between small and large vessels/businesses.

The CPS FMP and its implementing regulations require NMFS to annually set an OFL, ABC, ACL, and HG or ACT for the Pacific sardine fishery based on the specified harvest control rules in the FMP applied to the current stock biomass estimate for that year. The derived annual HG is the level typically used to manage the principal commercial sardine fishery and is the harvest level NMFS typically uses for profitability analysis each year. As stated above, the CPS FMP dictates that when the estimated biomass drops below a certain level (150,000 mt) there is no HG. Therefore, for the purposes of profitability analysis, this action is essentially proposing an HG of zero for the 2019-2020 Pacific sardine fishing season (July 1, 2019, through June 30, 2020). The estimated biomass used for management during the preceding fishing year (2018-2019) was also below 150,000 mt. Therefore, NMFS did not implement an HG for the 2018-2019 fishing year, thereby prohibiting the primary commercial directed Pacific sardine fishery. Since there is again no directed fishing for the 2019-2020 fishing year, this proposed rule will not change the potential profitability compared to the previous fishing year. Additionally, while the proposed 2019-2020 ACL is lower compared to previous years, it is still expected to account for the various fishery sector needs ( i.e., live bait, incidental catch in other CPS fisheries, and minor directed fisheries).

The revenue derived from harvesting Pacific sardine is typically only one of the sources of fishing revenue for the commercial vessels that participate in this fishery. As a result, the economic impact to the fleet from the proposed action cannot be viewed in isolation. From year to year, depending on market conditions and availability of fish, most CPS/sardine vessels supplement their income by harvesting other species. Many vessels in California also harvest anchovy, mackerel, and in particular, squid, making Pacific sardine only one component of a multi-species CPS fishery. Additionally, some sardine vessels that operate off of Oregon and Washington also fish for salmon in Alaska or squid in California during times of the year when sardine are not available. The purpose of the incidental catch limits proposed in this action are to ensure the vessels impacted by a prohibition on directly harvesting Pacific sardine can still access these other profitable fisheries while still minimizing Pacific sardine harvest.

CPS vessels typically rely on multiple species for profitability because abundance of Pacific sardine, like the other CPS stocks, is highly associated with ocean conditions and seasonality. Variability in ocean conditions and season results in variability in the timing and location of CPS harvest throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time. Therefore, as abundance levels and markets fluctuate, the CPS fishery as a whole has relied on a group of species for its annual revenues.

Therefore the proposed action, if adopted, will not have a significant economic impact on a substantial number of small entities. As a result, an Initial Regulatory Flexibility Analysis is not required, and none has been prepared.

This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.