Table of Contents I. Introduction A. Authority and Background B. Rulemaking Process II. Requests for Information and Comments A. Market Analysis 1. Shipments Estimates 2. Model Counts 3. Current Market Efficiency Distributions B. Energy Efficiency Descriptors 1. General 2. Representativeness of IEER for Evaporatively-Cooled and Water-cooled Units 3. Representativeness of IEER for Evaporatively-Cooled Units With Cooling Capacity Less Than 65,000 Btu/h 4. Burden of IEER Testing C. Other Energy Conservation Standards Topics 1. Market Failures 2. Other III. Submission of Comments I. Introduction A. Authority and Background

The Energy Policy and Conservation Act of 1975, as amended (“EPCA”), 1 among other things, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part C  2 of EPCA established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes ECUACs and WCUACs, the subject of this RFI. (42 U.S.C. 6311(1)(B)-(D))

Under EPCA, DOE's energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).

Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption in limited instances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6316(b)(2)(D).

EPCA contains mandatory energy conservation standards for commercial heating, air-conditioning, and water-heating equipment. (42 U.S.C. 6313(a)) Specifically, the statute sets standards for small, large, and very large commercial package air conditioning and heating equipment, packaged terminal air conditioners (PTACs) and packaged terminal heat pumps (PTHPs), warm-air furnaces, packaged boilers, storage water heaters, instantaneous water heaters, and unfired hot water storage tanks. Id. In doing so, EPCA established Federal energy conservation standards that generally correspond to the levels in American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings, as in effect on October 24, 1992 ( i.e., ASHRAE Standard 90.1-1989). ECUACs and WCUACs are covered under EPCA's definition of commercial package air conditioning and heating equipment. (42 U.S.C. 6311(8)) EPCA established initial standards for ECUACs and WCUACs with cooling capacity less than 240,000 Btu/h. (42 U.S.C. 6313(a))

If ASHRAE Standard 90.1 is amended with respect to the standard levels or design requirements applicable under that standard for certain commercial equipment, including ECUACs and WCUACs, not later than 180 days after the amendment of the standard, DOE must publish in the Federal Register for public comment an analysis of the energy savings potential of amended energy efficiency standards. (42 U.S.C. 6313(a)(6)(A)(i)) With certain exceptions, 3 DOE must adopt amended energy conservation standards at the new efficiency level in ASHRAE Standard 90.1, unless clear and convincing evidence supports a determination that adoption of a more-stringent efficiency level as a national standard would produce significant additional energy savings and be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(A)(ii)) If DOE adopts as a national standard the efficiency levels specified in the amended ASHRAE Standard 90.1, DOE must establish such standard not later than 18 months after publication of the amended industry standard. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) If DOE determines that a more-stringent standard is appropriate under the statutory criteria, DOE must establish the more-stringent standard not later than 30 months after publication of the revised ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(B))

EPCA also requires that every six years DOE evaluate the energy conservation standards for certain commercial equipment, including ECUACs and WCUACs, and publish either a notice of determination that the standards do not need to be amended, or a NOPR that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(i)) EPCA further provides that, not later than 3 years after the issuance of a final determination not to amend standards, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(iii)(II)) DOE must make the analysis on which the determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6313(a)(6)(C)(ii)) Further, a determination that more-stringent standards would (1) result in significant additional conservation of energy and (2) be both technologically feasible and economically justified must be supported by clear and convincing evidence. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A))

Following an update to ASHRAE Standard 90.1 ( i.e., ASHRAE Standard 90.1-2010), DOE published a final rule on May 16, 2012 (“May 2012 final rule”), amending the standards for 12 classes of ECUACs and WCUACs by adopting the energy efficiency ratio (EER) levels for this equipment established in ASHRAE 90.1-2010. 77 FR 28928. Since ASHRAE Standard 90.1-2010 was published, ASHRAE Standard 90.1 has undergone two revisions. On October 9, 2013, ASHRAE published ASHRAE Standard 90.1-2013, and on October 31, 2016, ASHRAE published ASHRAE Standard 90.1-2016. In neither of these publications did ASHRAE amend minimum EER levels for small, large, and very large water-cooled and evaporatively-cooled unitary air conditioners, and, thus, DOE was not triggered to examine amended standards for this equipment under 42 U.S.C. 6313(a)(6)(A). As a result, the current standards for ECUACs and WCUACs are those set forth in the May 2012 final rule and codified at 10 CFR 431.97. These standards are reproduced in Table I.1.

DOE is publishing this RFI to collect data and information to inform its decision consistent with its obligation under EPCA.

DOE must follow specific statutory criteria for prescribing new or amended standards for covered equipment. EPCA requires that in order to adopt a more-stringent standard for ECUACs and WCUACs, DOE must determine, supported by clear and convincing evidence, that adoption of a more-stringent efficiency level as a national standard would produce significant additional energy savings and be technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)) To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:

(1) The economic impact of the standard on the manufacturers and consumers of the affected products;

(2) The savings in operating costs throughout the estimated average life of the product compared to any increases in the initial cost, or maintenance expenses;

(3) The total projected amount of energy and water (if applicable) savings likely to result directly from the standard;

(4) Any lessening of the utility or the performance of the products likely to result from the standard;

(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

(6) The need for national energy and water conservation; and

(7) Other factors the Secretary of Energy (Secretary) considers relevant.

DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.2 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.

As detailed throughout this RFI, DOE is publishing this document seeking input and data from interested parties to aid in the development of an energy use analysis for ECUACs and WCUACs. The issues relevant to the energy use analysis are also relevant to the technical and economic analyses should DOE determine it necessary to conduct them. In addition to the specific issues identified in the following section on which DOE requests comment, DOE requests comment on its overall approach and analyses used to evaluate potential standard levels for ECUACs and WCUACs.

DOE seeks comment on whether there have been sufficient technological or market changes since the most recent standards update that may justify a new rulemaking to consider more stringent standards. Specifically, DOE seeks data and information that could enable the agency to determine whether DOE should propose a “no new standard” determination because a more-stringent standard: (1) Would not result in significant additional savings of energy; (2) is not technologically feasible; (3) is not economically justified; or (4) any combination of the foregoing. In the following sections, DOE has identified a variety of issues on which it seeks input to aid in determining whether to proceed with a “no new standard” determination or propose more-stringent standards for ECUACs and WCUACs.

In preparation for this RFI, DOE conducted a review of the current market for ECUACs and WCUACs, including equipment literature, and the DOE Compliance Certification Management System (CCMS) database. 4 In addition, DOE reviewed market data and stakeholder comments received as part of the previous standards rulemaking for ECUACs and WCUACs, as well as the energy savings potential for amended standards determined in that rulemaking. The following subsections discuss DOE's analysis of the current market for ECUACs and WCUACs as well as relevant results from the May 2012 final rule, including shipments estimates.

As part of the previous rulemaking, AHRI provided historical shipments data from 1989 to 2009 for WCUACs by cooling capacity range. DOE searched for, but was unable to identify, publicly available sources of shipments of ECUACs and WCUACs.

Previously submitted historical AHRI data showed strongly decreasing shipments for certain small ( i.e., greater than 65,000 Btu/h and less than 135,000 Btu/h cooling capacity) and large WCUACs over the period from 1989 to 2009. (Docket No. EERE-2011-BT-STD-0029-0003) For the analyses conducted for a notice of data availability (NODA) published on May 5, 2011 (“May 2011 NODA”), DOE developed shipments projections for these equipment classes using an exponential curve fit to the 21 years of available data. 76 FR 25622, 25641-25642. The energy savings estimates from the May 2011 NODA (which depend on the shipments projections) were presented unchanged in the May 2012 final rule. 77 FR 28969-28971. Because the historical trends showed a steep decline in shipments for these classes, the shipment projections resulted in very few shipments by the end of the 30-year analysis period. For very large WCUACs, the decline in shipments was less definitive, although a linear fit of the available 21 years of shipment data showed gradually declining shipments. For each of the WCUAC equipment classes analyzed, DOE used these shipments data to analyze two shipment scenarios: (1) Based on historical trends of declining shipments, and (2) based on shipments remaining constant at 2009 levels. DOE analyzed the energy savings potential by equipment class for both scenarios to provide a range of energy savings estimates. 76 FR 25641-25642. Estimates of annual shipments averaged over the 30-year analysis periods used in the previous rulemaking, 2013-2042 for small WCUACs and 2014-2043 for large and very large WCUACs, resulted in the shipment estimates shown in Table II.1 for each equipment class.

In the May 2012 final rule analysis, DOE did not identify any models of certain small ( i.e., greater than 65,000 Btu/h but less than 135,000 Btu/h cooling capacity) or large ECUACs, and thus DOE assumed no shipments for these equipment classes. Id. At 76 FR 25639. DOE identified multiple models of very large ECUACs. Because no shipments data were available for ECUACs, DOE developed shipment estimates based on the ratio of the number of identified models of very large ECUACs (9) to the number of models of very large WCUACs (35). Id. at 76 FR 25642. The average of the projected shipments per year (averaged over the 30-year analysis period) under both scenarios considered is shown in Table II.1. Average shipment estimates for ECUACs and WCUACs in Table II.1 are shown as ranges bounded by the estimates for the two different analyzed shipment scenarios ( i.e., (1) based on historical trends of declining shipments, and (2) based on shipments remaining constant at 2009 levels). Shipments for ECUACs and WCUACs are also shown as a percentage of package air conditioner and package heat pump annual shipments reported by AHRI, averaged over the 5-year period from 2013-2017, for each cooling capacity range. 5

The Board recognizes that many Americans face hiring barriers due to a criminal record, a great number of which are not violent or career criminals, but rather people who made poor choices early in life who have since paid their debt to society. Offering second chances to those who are truly penitent is consistent with our nation's shared values of forgiveness and redemption. In keeping with this spirit of clemency, the Board is seeking to expand career opportunities for those who have demonstrated remorse and responsibility for past indiscretions and wish to set on a path to productive living. Toward that end, the Board is proposing to revise its guidance regarding prohibitions imposed by Section 205(d) of the FCU Act.

Section 205(d) of the FCU Act prohibits, without the prior written consent of the Board, a person convicted of any criminal offense involving dishonesty or breach of trust, or who has entered into a pretrial diversion or similar program in connection with a prosecution for such offense, from becoming or continuing as an institution-affiliated party, or otherwise participating, directly or indirectly, in the conduct of the affairs of an insured credit union. In August 2008, the Board issued final IRPS 08-1, to provide direction and guidance to federally insured credit unions and those persons who may be affected by Section 205(d) because of a prior criminal conviction or pretrial diversion program participation by describing the actions that are prohibited under the statute and establishing the procedures for applying for Board consent on a case-by-case basis. 1 The IRPS has not been revised since 2008 and, based on its experience with the IRPS over the past decade, the Board is proposing to update and revise the guidance to reduce regulatory burden while protecting federally insured credit unions from risk by convicted persons. The Board encourages interested parties to provide their input and comments on all aspects of the proposal.

Under Section 205(d)(1) of the FCU Act, except with the prior written consent of the Board, a person who has been convicted of any criminal offense involving dishonesty or breach of trust, or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense may not:

• Become, or continue as, an institution-affiliated party with respect to any insured credit union; or

• Otherwise participate, directly or indirectly, in the conduct of the affairs of any insured credit union.

Section 205(d)(1)(B) further provides that an insured credit union may not allow any person described above to participate in the affairs of the credit union without Board consent. Section 205(d)(2) imposes a ten-year ban against the Board's consent for a person convicted of certain crimes enumerated in Title 18 of the United States Code, absent a motion by the Board and approval by the sentencing court. Finally, Section 205(d)(3) states that “whoever knowingly violates” (d)(1)(A) or (d)(1)(B) commits a felony, punishable by up to five years in jail and a fine of up to $1,000,000 a day.

Recognizing that certain offenses are so minor and occurred so far in the past so as to not currently present a substantial risk to the insured credit union, IRPS 08-1 excludes certain de minimis offenses from the need to obtain consent from the Board. However, several recent applications requesting the Board's consent pursuant to Section 205(d) involved fairly minor, low-risk, erstwhile, and isolated offenses that did not fall within the current de minimis exception. 2 In light of these recent cases, the substantial passage of time since IRPS 08-1 was adopted, and importantly, the Board's commitment to opening a path forward for those seeking redemption for past criminal activities, the Board has determined it is appropriate to now consider revisions to IRPS 08-1.

In proposing these amendments to IRPS 08-1, the Board is, once again, mindful of a corresponding Statement of Policy (SOP) issued by the Federal Deposit Insurance Corporation (FDIC) to determine whether similar or other changes should be made to IRPS 08-1 to improve consistency between the prudential regulators and to reduce regulatory burden. Section 19 of the Federal Deposit Insurance Act (FDIA) contains a prohibition provision similar to Section 205(d) of the FCU Act. In 1998, the FDIC implemented an SOP regarding prohibitions imposed by Section 19 of the FDIA, and it has subsequently modified and updated its guidance on several occasions. 3 In the past, the NCUA has drawn on the FDIC's SOP for guidance on this topic. In 2018, the FDIC updated and revised its SOP to expand its de minimis exception and to make other clarifying changes. 4 In the Board's view, it is beneficial to both institutions and covered individuals for the NCUA's Section 205(d) requirements to be reasonably consistent, to the extent possible, with the FDIC's Section 19 requirements. Consistent guidelines between our sister agencies with respect to these parallel statutory provisions will help streamline the application process, particularly for those individuals seeking consent from both the NCUA and the FDIC to allow for potential employment at federally insured financial institutions.

In addition to some minor grammatical, formatting, and clarifying changes, the Board proposes to revise the IRPS as described in detail below.

IRPS 08-1 currently provides background regarding Section 205(d)'s prohibition, and discusses its purpose to provide requirements, direction and guidance to federally insured credit unions and individuals covered by the statutory ban. The background section would be revised to make clear that IRPS 19-1 supersedes and replaces IRPS 08-1.

The scope section of the proposed IRPS would be modified to clarify the persons covered by the Section 205(d) prohibition. Under the statute, the prohibition applies to institution-affiliated parties, as defined by Section 206(r) of the FCU Act, 5 and others who are participants in the conduct of the affairs of an insured credit union. 6

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 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 amend Class E airspace to support a new RNAV procedure at Walden-Jackson County Airport, Walden, CO.

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 and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2019-0372; Airspace Docket No. 18-ANM-17”. The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the 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 the ADDRESSES section for the 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 Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA 98198.

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 document. 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 by amending Class E airspace extending upward from 700 feet above the surface at Walden-Jackson County Airport, Walden, CO, within 4 miles each side of the 227° bearing extending from the 5 mile radius to 9.4 miles southwest of airport. Additionally, this action proposes to remove Class E airspace extending upward from 700 feet above the surface within 4 miles each side of the 342° bearing extending from the 5 mile radius to V-524 northwest of the airport, this airspace is not required to contain instrument procedures at the airport.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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 rule, when promulgated, would 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.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

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 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 amend the Class D legal description for Los Angeles International Airport, Los Angeles, CA, in support of IFR operations at the airport.

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 (Docket No. FAA-2019-0535; Airspace Docket No. 19-AWP-20) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for address and phone number).

Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2019-0535; Airspace Docket No. 19-AWP-20.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the 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 the ADDRESSES section for the 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 between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays, at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th St, Des Moines, WA 98198-6547.

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 document. FAA Order 7400.11C lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes to amend Title 14 Code of Federal Regulations (14 CFR) part 71 by removing language from the legal description in FAA Order 7400.11C, that establishes the Class D airspace for Los Angeles International Airport, Los Angeles, CA as part time. NBAA informed the FAA that the LAX Class D legal description, the related chart supplement entry, and notes included on the VFR Sectional contained information that did not clearly identify when the airspace was in effect. The FAA concurs. The legal description contains language that implied the Class D airspace was part-time, inconsistent with the original intent of the airspace. The Chart Supplement does not include information indicating when the airspace is effective and directs users to the VFR Terminal Area Chart. The VFR Terminal Area Chart directs users to the Chart Supplement or NOTAMS for information and NOTAMS are not appropriate for this use. The original intent was to establish the Class D airspace as full time. In 2009, as a result of a mid-air collision in New York and in response to NTSB Recommendation A-09-86, Congress requested the FAA evaluate low-level flight around heavy-use airspace. The FAA committed to evaluations of flight operations in and around Class Bravo Airspace in New York, Los Angeles, Chicago, and Houston. The LAX VFR Airspace Taskforce was convened and made recommendations to modify the airspace around LAX in a two-step process. Step one was to establish full-time Class D airspace at LAX. Step two was to incorporate the Class D airspace into the LAX Class B at a later date. This proposal recommends removal of the language indicating the airspace is part time and does not affect the lateral boundaries of the airspace.

Class D airspace designations are published in paragraph 5000 of FAA Order 7400.11C, dated August 13, 2018 and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designation listed in this document will be published subsequently 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, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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, would 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.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Invitation to Comment: We invite you to submit comments regarding the proposed priority. To ensure that your comments have maximum effect in developing the notice of final priority, we urge you to identify clearly the specific issues that each comment addresses. We are particularly interested in comments that provide examples of how Qualified Opportunity Funds can support activities carried out under the Department's discretionary grant programs.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 13771 and their overall requirement of reducing regulatory burden that might result from this proposed priority. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of our programs.

During and after the comment period, you may inspect all public comments about the proposed priority by accessing Regulations.gov. You may also inspect the comments in person in 400 Maryland Avenue SW, Room 4W243, Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern Time, Monday through Friday of each week except Federal holidays.

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

Program Authority: 20 U.S.C. 1221e-3.

Proposed Priority: This document contains one proposed priority.

Spurring Investment in Qualified Opportunity Zones.

Background: Public Law (Pub. L.) 115-97 authorized the designation of Qualified Opportunity Zones ( i.e., designated distressed communities) to promote economic development and job creation in distressed communities through preferential tax treatment for investors. Distressed communities could qualify as Opportunity Zones if they are nominated for that designation by the Chief Executive Officer of their State and then certified by the Secretary of the Treasury. The Secretary of the Treasury has certified more than 8,700 Qualified Opportunity Zones, approximately 12 percent of U.S. Census Tracts, across the 50 States, the District of Columbia, and five U.S. Territories. 1

Specifically, Public Law 115-97 added sections 1400Z-2 and 1400Z-1 of the Internal Revenue Code of 1986 (IRC) to encourage economic growth and investment in Qualified Opportunity Zones by providing Federal income tax benefits to taxpayers who invest in businesses located within these zones. Section 1400Z-2 provides two main tax incentives to encourage investment in Qualified Opportunity Zones. First, it allows for the deferral of inclusion in gross income for certain gains to the extent that corresponding amounts are reinvested in a Qualified Opportunity Fund. Second, it excludes from gross income the post-acquisition gains on investments in a Qualified Opportunity Fund that are held for at least 10 years.

Through this proposed priority, we seek to expand and improve the opportunities available to individuals in Qualified Opportunity Zones by (1) encouraging applicants to plan projects in Qualified Opportunity Zones; (2) soliciting applications from eligible entities who are located in Qualified Opportunity Zones; or (3) soliciting applications from eligible entities that have received investments, including accessing real estate that has received investment from Qualified Opportunity Funds for a purpose directly related to their proposed projects. A list of Qualified Opportunity Zones is available at: www.cdfifund.gov/Pages/Opportunity-Zones.aspx.

Under this proposed priority, the Department would have flexibility to use one or more of the priority's subparts in a given competition and, with respect to subpart (c), may give applicants additional time prior to the Department's award of grants to provide evidence of investment from a Qualified Opportunity Fund. We recognize that such additional time may be needed to enable an applicant to provide documentation of investment from a Qualified Opportunity Fund or that real estate they are accessing has received investment from a Qualified Opportunity Fund. If the Department elects to give applicants additional time, we will announce in the notice inviting applications (NIA) the deadline by which such evidence must be provided.

The Department may make changes to this proposed priority in response to final regulations from the Department of the Treasury when those regulations are published. Commenters are encouraged to view the proposed regulations, “Investing in Qualified Opportunity Funds,” which were originally published in the Federal Register on October 29, 2018 (83 FR 54279), and then updated on May 1, 2019 (84 FR 18652), and are available at www.federalregister.gov/d/2018-23382 and www.federalregister.gov/documents/2019/05/01/2019-08075/investing-in-qualified-opportunity-funds, respectively.

Proposed Priority: Under this priority, an applicant must demonstrate one or more of the following:

(a) The area in which the applicant proposes to provide services overlaps with a Qualified Opportunity Zone, as designated by the Secretary of the Treasury under section 1400Z-1 of the IRC. An applicant must—

(i) Provide the census tract number of the Qualified Opportunity Zone(s) in which it proposes to provide services; and

(ii) Describe how the applicant will provide services in the Qualified Opportunity Zone(s).

(b) The applicant is located in a Qualified Opportunity Zone. The applicant is located in a Qualified Opportunity Zone if the applicant has multiple locations, at least one of which is within a Qualified Opportunity Zone, or if the applicant's location overlaps with a Qualified Opportunity Zone. The applicant must provide the census tract number of the Qualified Opportunity Zone in which it is located.

(c) The applicant has received, or will receive by a date specified by the Department, an investment, including access to real property, from a Qualified Opportunity Fund under section 1400Z-2 of the IRC for a purpose directly related to its proposed project. An applicant must—

(i) Identify the Qualified Opportunity Fund from which it has received or will receive an investment; and

(ii) Describe how the investment would be directly related to its proposed project.

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

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

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

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

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

Note: This document does not solicit applications. In any year in which we choose to use this priority, we invite applications through a notice in the Federal Register .

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

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

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

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

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This proposed regulatory action is a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

Under Executive Order 13771, for each new rule that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2019, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Although this regulatory action is a significant regulatory action, the requirements of Executive Order 13771 do not apply because this regulatory action is a “transfer rule” not covered by the Executive order.

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

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

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

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

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

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

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

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

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

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

The Department believes that this regulatory action would not impose significant costs on eligible entities, whose participation in our programs is voluntary. Additionally, the benefits of the proposed priority outweigh any associated costs because it would result in the Department's discretionary grant programs selecting high-quality applications to implement activities that are designed to increase education opportunities and improve education outcomes while also targeting investment in our Nation's most economically distressed communities.

The Secretary believes that the costs imposed on applicants by the proposed priority would be limited to paperwork burden related to preparing an application for a discretionary grant program that is using the priority in its competition. The proposed priority would likely result in Federal funds transferring from areas that are not designated as Qualified Opportunity Zones to areas that have received that designation. However, the Department has no way of meaningfully estimating the amount of such transfers because the number of programs that may use the proposed priority in a future grant competition is unknown, the amount of future funding available for new awards in such programs is unknown, and the number of applicants likely to apply for grants under the proposed priority is unknown. Some of the Department's discretionary grant programs have included priorities for Qualified Opportunity Zones in their fiscal year 2019 competitions, but those competitions have not yet closed.

Regulatory Flexibility Act Certification: The Secretary certifies that this proposed regulatory action would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration (SBA) Size Standards define proprietary institutions as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are defined as small entities if they are independently owned and operated and not dominant in their field of operation. Public institutions are defined as small organizations if they are operated by a government overseeing a population below 50,000.

We certify that that this proposed regulatory action would not have a significant economic impact on small entities. This proposed priority would be used in the Department's discretionary grant competitions, and small entities may choose whether to participate. The Secretary believes that the costs imposed on small entities by the proposed priority would be limited to paperwork burden related to preparing an application for a discretionary grant program that is using the priority in its competition. Further, the Secretary believes that this proposed priority may help small entities because it would allow the Department to provide incentives for applicants to conduct their projects in Qualified Opportunity Zones, thus directing additional resources to some small entities in our Nation's most economically distressed communities.

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

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

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

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

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

On June 6, 2018, section 152 of Public Law 115-182, the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018, or the VA MISSION Act of 2018, amended title 38 of the United States Code (U.S.C.) by adding a new section 1703E, Center for Innovation for Care and Payment. Section 1703E(a)(1) establishes the Center for Innovation for Care and Payment (the Center). Section 1703E(a)(2) authorizes the conduct of pilot programs to develop innovative approaches to testing payment and service delivery models to reduce expenditures while preserving or enhancing the quality of care furnished by VA, and subsection (a)(3) requires VA to determine whether such models improve access to, and quality, timeliness, and patient satisfaction of care and services, and create cost savings for VA. Section 1703E(a)(4) requires that VA test a model in a location where VA determines that the model will address deficits in care (including poor clinical outcomes or potentially avoidable expenditures) for a defined population; it further directs VA to focus on models VA expects to reduce program costs while preserving or enhancing the quality of care received by individuals receiving benefits under chapter 17 of title 38, United States Code. Under section 1703E(a)(4)(C), VA could select those models described in 42 U.S.C. 1315a(b)(2)(B), the authority for the Center for Medicare and Medicaid Innovation. In selecting models for testing, section 1703E(a)(5) permits VA to consider a number of different factors, including whether the model includes a regular process for monitoring and updating patient care plans in a manner that is consistent with the needs and preferences of individuals receiving benefits under chapter 17; whether the model places the individual receiving benefits under chapter 17 (including family members and other caregivers of such individual) at the center of the care team of such individual; whether the model uses technology or new systems to coordinate care over time and across settings; and whether the model demonstrates effective linkage with other public sector payers, private sector payers, or statewide payment models. Section 1703E(a)(6) states that VA may not design models in such a way that would allow the United States to recover or collect reasonable charges from other Federal health care programs, such as Medicare, Medicaid, or TRICARE.

Section 1703E(b) provides that pilot programs must be terminated no later than five (5) years after they begin. Section 1703E(c) directs VA to ensure that each pilot program carried out under this section occurs in an area or areas appropriate for the intended purposes of the pilot program; to the extent practicable, VA should ensure that pilot programs are located in geographically diverse areas. Section 1703E(d) states that funding for each pilot program must come from appropriations provided in advance in appropriations acts for the Veterans Health Administration (VHA) and information technology systems. Section 1703E(e) requires VA publish information about each pilot program in the Federal Register and to take reasonable actions to provide direct notice to veterans eligible to participate in such pilot programs.

Section 1703E(f) allows VA to waive requirements in subchapters I, II, and III of chapter 17, title 38, U.S.C., as VA determines necessary for the purposes of carrying out pilot programs under this section. Before waiving any such authority, VA will submit to Congress a report on a request for a waiver that describes the specific authorities to be waived, the standard or standards to be used in lieu of the waived authorities, the reasons for such waiver or waivers, and other matters including metrics, cost estimates (both budgets and savings), and schedules.

Section 1703E(g) imposes several restrictions on VA's authority under this section, notably limiting the number of pilot programs (10) that can be carried out concurrently, requiring VA to submit the first pilot program proposal to Congress within 18 months of the enactment of the Caring for Our Veterans Act of 2018 (June 6, 2018), and requiring VA to either modify or terminate a pilot program if VA determines it is not improving the quality of care or producing cost savings. Section 1703E(h) requires VA to conduct an evaluation of each pilot program, and section 1703E(i) requires VA to obtain advice from the Under Secretary for Health and the Special Medical Advisory Group in the development and implementation of any pilot program. VA must also consult representatives of relevant Federal agencies, and clinical and analytical experts with expertise in medicine and health care management. Finally, section 1703E(j) authorizes VA to expand, through rulemaking, successful pilot programs in duration or scope.

This proposed rule would implement the mandates and authorities of section 1703E, as added by the VA MISSION Act of 2018, by establishing a new § 17.450.

Proposed paragraph (a) would establish the purpose for this section and the organization of the Center. Proposed paragraph (a)(1) would explain that the Center for Innovation for Care and Payment will carry out pilot programs to develop innovative approaches to testing payment and service delivery models to reduce expenditures while preserving or enhancing the quality of care furnished by VA. This would be consistent with section 1703E(a)(2). We would further state that the Center for Innovation for Care and Payment will be operationally independent from any of VA's three administrations and will be responsible for collaborating across VA to develop and implement pilot programs under this section. As further explained in proposed paragraphs (a)(2)-(3), being operationally independent refers to the decision-making authority of the Center regarding the strategic, procedural, and tactical aspects of managing the pilot programs under this section. To ensure the limited number (10) of concurrent pilot programs under this section are not redundant of or conflicted by ongoing innovation efforts within any specific administration, the Center for Innovation for Care and Payment will not operate within any specific VA administration but will operate in VA's corporate portfolio.

We are strategically positioning the Center as operationally independent to focus on envisioning veteran care and payment requirements in the distant future and preparing VA to meet the needs of veterans today, as well as in the future; in 2045, for example, the population of veterans in the United States is projected to decline to 12 million. Of the approximately 20 million veterans alive today, VA provides health care for approximately 7 million unique patients each year, including approximately 1 million unique non-veterans. If current trends hold, we anticipate that by 2045, VA would be providing health care to approximately 3.6 million unique veteran patients each year. As such, we anticipate VA would need to re-imagine its current approach to furnishing services and payments for the veterans it hopes to serve in 2045. For the Center to be positioned for success in its mission to re-imagine VA's current approach to furnishing services and payments for veterans, it must enjoy strategic and operational independence from existing processes. In the commercial market, innovation efforts led by incumbents or large enterprises are rarely responsible for creating sustainably disruptive solutions that revolutionize the products or services of the incumbent. This is to be expected, because any new solution that threatens the viability or market position of established products or services is ultimately stifled by the enterprise focus on the near-term objectives of sustaining current products and services in lieu of investing additional time and resources in emerging solutions that could revolutionize product and service offerings to significantly benefit the organization's customers. We believe that creating an autonomous, independent organization with its own brand is the best way to enable corporate innovation to thrive. Autonomy does not mean the Center would work in isolation. The Center will report through the Office of the Secretary of Veterans Affairs and ultimately the President of the United States and does not have the unilateral authority to execute pilot programs.

Proposed paragraph (b) would define the terms for this section.

Proposed paragraph (b) would define the term access. Section 1703E(a)(3)(A) directs VA to test payment and service delivery models to determine whether such models improve access to, and quality, timeliness, and patient satisfaction of care and services. Because VA will be testing models to determine whether they improve access, it is important to define the term. We propose to define access as entry into or use of VA services. Entry into would refer to basic eligibility and enrollment, while use of services would refer to the actual receipt of care and services. Access to care is dependent on both availability and adequacy of services as well as barriers ( e.g., financial, cultural, etc.) that may interfere with utilization of available services. See Gulliford, M. et al., What Does “Access to Care” Mean? Journal of Health Services Research and Policy (2002), available at https://www.ncbi.nlm.nih.gov/pubmed/12171751.

We recognize that our beneficiaries face various issues affecting access, including lack of availability of VA services in a specific geographic area or barriers to obtaining care for specific populations. As such, we believe this comprehensive interpretation of access would be of greatest benefit to veterans affected by pilot programs conducted by the Center.

Proposed paragraph (b) would define the term patient satisfaction of care and services to mean the patients' rating of their experiences of care and services and as further defined in a pilot program proposal. In addition to requiring that we test payment and service delivery models to determine whether they improve access and timeliness, section 1703E(a)(3)(A) also requires that we assess whether the models improve patient satisfaction, which is a critical indicator of service quality and patient-centric care. The health care industry standard is to assess patients' perception of their health care experience using the Consumer Assessment of Health Providers and Systems (CAHPS) survey, which has been in use since the mid-1990s. For example, the Centers for Medicare and Medicaid Services (CMS) has adopted CAHPS for care delivered in multiple care settings. Each CAHPS survey produces several measures of patient experience. These measures include composite measures, which combine two or more related survey items; rating measures, which reflect respondents' ratings on a scale of 0 to 10; and single-item measures. Measuring patient experience measures what is important to the patient: access, service, and communication. For years VA has been measuring patient satisfaction by focusing on patient experience. VA uses CAHPS to measure veterans' experience of care for outpatient care and VA's Survey of Healthcare Experience of Patients (SHEP) to measure inpatient experience of care. SHEP has been in use for many years and uses the same questions as the Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS), a standardized, nationally-used, public survey that measures inpatient experience of care.

We believe that using these types of patient experience of care measures would be in line with health care industry standards and VA existing practices and would ensure that veterans and providers alike are not burdened with new types of assessments or surveys. In addition, measuring patient perceptions by using the industry-accepted patient experience of care would allow veterans to better understand how the care provided by VA compares to that provided outside of VA by having equivalent data to make comparisons, as well as how care furnished through the pilot compares with care furnished outside the pilot.

Proposed paragraph (b) would define the term payment models. Section 1703E(a)(2) authorizes VA to carry out innovative approaches to testing payment and service delivery models to reduce expenditures while preserving or enhancing the quality of care furnished by VA. Innovative payment models incorporate different types of arrangements that help lower cost while maintaining or improving the quality of services. We therefore propose to state that the term payment models refers to the types of payment, reimbursement, or incentives that VA deems appropriate for advancing the health and well-being of beneficiaries. Use of the term incentive indicates anything that is intended to motivate service providers to perform better or deliver services in a more favorable manner, which is consistent with the usual dictionary definition. While the term payment models is specifically applicable to service providers, we note that VA could use incentives for patients or other beneficiaries; such an approach would need to be developed through a pilot program proposal.

Proposed paragraph (b) would define the term pilot program to refer to a pilot program conducted under proposed § 17.450. VA operates programs on a pilot or temporary basis under authorities other than section 1703E, but because these regulations only implement that authority and place requirements or restrictions, or authorize certain functions under section 1703E, we propose to define the term here to avoid any impression that the proposed § 17.450 extends those requirements, restrictions, or authorities to other VA initiatives operated under separate legal authorities.

We aim, through testing innovative payment and service delivery models, to discover novel and innovative ways to deliver services that enhance the quality of care for beneficiaries. Section 1703E(a)(2) refers to testing payment and service delivery models to reduce expenditures while preserving or enhancing the quality of care. We propose to use the term quality enhancement to refer to enhancing the quality of care. We propose in paragraph (b) to state that quality enhancement refers to improvement or improvements in such factors as clinical quality, beneficiary-level outcomes (for example, symptom burden), and functional status, which is indicative of an individual's ability to perform normal daily activities required to meet basic needs, fulfill usual roles, and maintain health and well-being as documented by improvements in measurement data from a reliable and valid source, such as the electronic health record, and as further defined in a pilot program proposal. Quality enhancements are multi-faceted, and measurements on such enhancements would be tailored to the specific area tested by a pilot program and would be defined in VA's proposal, as required by section 1703E(f)(2)(D).

Similarly, we propose to define quality preservation in paragraph (b) to refer to the maintenance of such factors as clinical quality, beneficiary-level outcomes, and functional status as documented through measurement data from an evidence-based source, and as further defined in a pilot program proposal. Maintenance in this sense would mean continued, sustained, or improved performance by the patient along several dimensions of care as demonstrated by the types of factors described above and as documented through an evidence-based source. Like quality enhancement, specific measurements would be defined in VA's proposal.

We propose to define in paragraph (b) reduction in expenditure. Section 1703E(a)(2) authorizes VA to test payment and service delivery models that lead to a reduction in expenditures while enhancing or preserving the quality of care furnished by VA. Some innovative models will require upfront investment and additional resources that might increase associated expenditures in the near term, but we anticipate the rise in expenditures will be mitigated by corresponding improvements in outcomes and value creation over time. Value creation could occur in multiple scenarios such as through cost reduction, cost avoidance, or reallocation of resources to alternative, higher-value activities. For example, investing in a system that reduces unnecessary or duplicative testing could lead to long term cost avoidance. For these reasons, we propose to state that reduction in expenditure refers to, but is not limited to, cost stabilization, cost avoidance, and/or decreases in long- or short-term spending and as further defined in a pilot program proposal. We would not limit reduction in expenditures to cost stabilization, cost avoidance, and/or decreases in long- or short-term spending in case there are other methods for determining that VA's expenditures have been reduced that do not fit within any of the descriptions above. In considering the impact of a pilot program on expenditures, VA will estimate how the proposal is anticipated to impact VA expenditures and also consider the proposal's potential impact on expenditures for other related Federal programs.

In proposed paragraph (b), we would state that the term service delivery models refers to all methods or programs for furnishing care and services. Section 1703E(a)(2) authorizes VA to develop innovative approaches to testing payment and service delivery models to reduce expenditures while preserving or enhancing the quality of care. Health care services can be delivered by either VA staff or by non-VA entities or providers, as well as through different modalities (like telehealth) or different models (like VA's Patient-Aligned Care Teams) and the definition proposed here would capture all potential modalities and models for furnishing services and would be the common understanding of this phrase. The term service delivery model generally includes any method for furnishing services, and we believe this is intended to apply broadly given the range of services and support that VA provides to different beneficiaries.

In proposed paragraph (c), we would establish the procedures VA would use to determine the geographic locations where pilot programs would be conducted. Sections 1703E(a)(4)(A) and 1703E(c) require VA to test models and pilot programs in locations where there are deficits in care while ensuring that pilot programs are in geographically diverse areas of the United States. Because different beneficiary populations may have different needs depending on where they live, we believe that geographic location will play a critical role in the design of any pilot program. However, VA cannot yet define the specific factors that we would use to select geographic locations for specific pilot programs. We anticipate the basis for these decisions will vary based upon the goals and objectives of each specific pilot program. For example, if VA were to test a new payment methodology, it may be more appropriate to test it in a portion of the country where providers are already accustomed to being paid in alignment with that model. While market readiness would not serve as the sole reason for geographic location selection, it could be a key factor in selecting specific markets in which to test specific pilot programs. Consequently, we would state in proposed paragraph (c) that VA would make decisions regarding the location of each pilot program based upon the appropriateness of testing a specific model in a specific area while taking efforts to ensure that pilot programs are operated in geographically diverse areas of the country. We would identify the proposed geographic locations for each pilot program, the rationale for those decisions, and how we believe the selected locations would address deficits in care for a defined population in VA's proposal to Congress to operate the pilot program and a document in the Federal Register .

Proposed paragraph (d) would define limitations on the authority of the Center. These limitations would only apply to pilot programs under this section. Again, VA operates pilot programs under different authorities, and these limits would not affect such other pilot programs, nor would these other pilot programs affect the activities of the Center. Section 1703E(g) establishes several of VA's limitations in carrying out pilot programs through the Center. Section 1703E(g)(1) states that VA may not carry out more than 10 pilot programs concurrently. We propose to interpret this in paragraph (d)(1) to mean that VA cannot actively operate more than 10 pilot programs at one time. Conducting pilot programs requires advance preparation, as well as data analysis following the completion of a pilot program. VA proposes to exclude the time involved with this preparatory and post-program analysis by considering the operation of a pilot program as only the time of active operation. This would ensure that VA is able to operate the maximum number of pilot programs at any one time and mitigate potential delays to launching new pilot programs that could improve quality and reduce cost during the preparatory and post-pilot analysis effort of other pilot programs.

In proposed paragraph (d)(2), we would state that, unless VA determines it to be necessary and informs the appropriate Committees of Congress, VA would not obligate more than $50 million in any fiscal year to operate all the pilot programs under this section. This is consistent with section 1703E(d) and section 1703E(g)(2), which state that, subject to notification and approval conditions, VA may not expend more than $50 million in any fiscal year in the conduct of the pilot programs operated under this section. Funding required to operate the pilot programs includes all administrative and overhead costs, including measurement and evaluation, as well as the funding required to implement the specific payment or service delivery models being tested. We propose to interpret the term “expend” under section 1703E(g)(2) to mean “obligate.” This interpretation accounts for the legal requirement to record obligations that may result in immediate or future expenditures (outlays). An “obligation” is a definite commitment that creates a legal liability for payment. At the time that VA incurs a liability ( e.g., signing a contract) it records the full amount of its legal liability against currently-available funds pursuant to the recording statute, 31 U.S.C. 1501(a)(1). The timing of the incurrence of an obligation is generally within the agency's control, while the timing of the liquidation of the obligation is largely outside of the agency's control, due to factors such as contractor performance and billing. Thus, interpreting “expend” to mean “outlay” rather than “obligate” would frustrate the legislative intent of authorizing up to $50 million per fiscal year to carry out the pilot programs. We note that paragraph (d)(2) would not condition VA's obligation of more than $50 million upon approval of the Chairmen of the Committees on Veterans' Affairs of the House of Representatives and the Senate, as is contemplated in section 1703E(g)(2)(B)(iii). As noted in the President's Signing Statement, issued upon enactment of the VA MISSION Act of 2018, under the separation of powers, the Congress may not make the approval of Members of Congress a precondition to the execution of the law. See Statement of the President, June 6, 2018, available online: https://www.whitehouse.gov/briefings-statements/statement-by-the-president-3/. VA, accordingly, treats the section 1703E(g)(2)(B)(iii) approval requirement as advisory and non-binding, but may submit the required report to the appropriate Congressional Committees before exceeding the spending cap, if VA determines that the additional expenditure is necessary to carry out the pilot programs. For the public's awareness, coordination and approval of funding sources under section 1703E(d) for pilot programs will occur prior to public notice.

In proposed paragraph (e), we would define VA's waiver authority to conduct pilot programs. Section 1703E provides a unique ability for VA, temporarily and in certain locations, to amend effectively its statutory authority when carrying out pilot programs under this section. Specifically, section 1703E(f)(1) allows VA to waive any provisions of law in subchapters I, II, and III of chapter 17, title 38 U.S.C., i.e., sections 1701 through 1730C, as VA determines necessary solely for the purposes of carrying out this section with respect to testing models. However, VA cannot unilaterally waive these authorities; it must propose a waiver and describe a proposed pilot program in a report to Congressional leadership, and only upon Congress' approval may VA carry out the pilot program. VA must submit the first request for a waiver by December 6, 2019, as required by section 1703E(g)(3).

Proposed paragraph (e) would clarify VA's authority regarding the waiver provisions in section 1703E(f). In proposed paragraph (e), we would state that VA's waiver authority includes both the authority to propose the removal of provisions of law or the addition of provisions of law. VA is a creature of law, and thus only has the authority granted to it by statute. Some statutes are restrictive, in that they provide a general authority and then place conditions upon the use of that authority. For example, section 1705 of title 38, U.S.C., defines VA's patient enrollment system and identifies those veterans who are eligible to enroll and in which priority group such veterans will be enrolled. Under this authority, VA could propose to waive some specific provision of law by proposing to act as though such language that is in the statute were not there. At the same time, because VA is limited by its legal authority to only carry out those functions authorized by law, we propose to include in VA's waiver authority the ability to include additional language creating new authority for VA to act, or restricting language currently authorizing or requiring VA to act. For example, section 1708 of title 38, U.S.C., authorizes VA to provide temporary lodging in certain situations and for certain persons. VA could use this waiver authority to propose to include additional groups of eligible beneficiaries under this regulation.

We propose to allow VA to propose new or different standards under the waiver authority of section 1703E(f). We believe this is authorized by section 1703E(f)(1), which authorizes VA to waive such requirements in subchapters I, II, or III of chapter 17 of title 38, U.S.C. These requirements, as explained above, may either be explicit, which would require their removal, or implicit, which would require the addition of further language. Moreover, we believe this interpretation is further supported by section 1703E(f)(2)(B), which requires VA, in proposing the waiver of authority for a pilot program, to identify the standard or standards to be used in the pilot program in lieu of the waived authorities. We believe this language authorizes VA both to suggest additional standards or the removal of standards as well. We believe that if Congress or the public disagreed with the scope of this authority, Congress could simply choose to not approve VA's waiver request, so there is little to no risk associated with this interpretation.

We also would state that VA may propose to waive any provision of law in any provision codified in or included as a note to any section in subchapters I through III of chapter 17, title 38, U.S.C. Some laws are codified in a title of the United States Code. For example, section 1710 of title 38, U.S.C., defines eligibility for hospital, nursing home, and domiciliary care. Other laws are not codified but are included as notes to codified provisions when they deal with similar or general subject matters. For example, section 205 of Public Law 111-163 established a pilot program on assistance for child care for certain veterans receiving health care. Section 205 of Public Law 111-163 is included as a note to section 1710 of title 38, U.S.C. Proposed paragraph (e) would allow VA to propose to waive provisions in either the text of section 1710 (for example, relating to eligibility for hospital, nursing home, or domiciliary care) or a note to section 1710 (for example, relating to the pilot program on assistance for child care for certain veterans receiving health care). We believe this is authorized by section 1703E(f)(1), which authorizes VA to waive such requirements in subchapters I, II, and III of this chapter. When citing to a public law that appears as a note to a codified provision of law, we include the U.S.C. section and identify this as a note; public laws are assigned as notes to codified provisions of law by the Office of the Law Revision Counsel in the U.S. House of Representatives. This recognizes that these public laws are requirements in, or at least related to, the section of law. We also believe that if Congress or the public disagreed with the scope of this authority, Congress could simply choose to not approve VA's waiver request, so the risk associated with this interpretation is limited. In other words, if VA proposed to modify a note to a section of law and Congress did not think we had the authority to do that, or disagreed with VA on policy grounds, it would simply not approve the waiver request and the provision would not be waived.

Finally, in paragraph (e)(1), we propose, upon Congressional approval of a waiver of a provision of law under this section, that VA will also deem waived any applicable provision of regulation implementing such law as identified in VA's pilot program proposal. We believe this would be a necessary component to exercising the statutory authority granted by section 1703E(f)(1), which allows VA to waive “such requirements” in subchapters I, II, and III of chapter 17 as the Secretary determines necessary solely for the purposes of carrying out this section with respect to testing models. We believe regulations interpreting and implementing specific statutory provisions in subchapters I, II, and III are “requirements” within the context of this authority. It would be paradoxical for VA to test innovative approaches to payment and service delivery if VA could waive provisions of statute but not corresponding, and potentially more limiting, regulations promulgated by VA. For example, if VA proposed to waive a provision in section 1712 concerning dental care, and Congress approved such a proposal, VA could also waive any regulatory requirements (such as those found in 38 CFR 17.160) that implemented the provision of law waived by VA through the pilot program.

Under proposed paragraph (e)(2), VA would publish a document in the Federal Register with information about, and soliciting public comment on, each proposed pilot program so that the public has an opportunity to comment on VA's proposals while Congressional approval is pending. VA would then publish a document in the Federal Register to inform the public of any approved pilot programs, as required by section 1703E(e)(1). While this is not required by law, we believe this would be prudent practice to ensure that the public also has an opportunity to submit comments directly to VA regarding pending pilot program proposals and to inform their Members of Congress if they have any issues or concerns so that Congress can appropriately decide whether or not to approve a requested waiver of authority for the Center.

Under proposed paragraph (f), VA would establish procedures regarding notice of eligibility requirements. Specifically, we would state that VA would take reasonable actions to provide direct notice to veterans eligible to participate in pilot programs operated under this section and would provide general notice to other individuals eligible to participate in a pilot program. We would further state that VA also would announce methods of notice in the Federal Register document published by VA for each proposed and approved pilot program. While section 1703E(e)(2) directs VA to take reasonable actions to provide direct notice to veterans eligible to participate in such pilot programs, we note that other provisions in section 1703E refer more broadly to individuals that are eligible for benefits. See, e.g., 1703E(a)(4)(B), (a)(5)(A)-(B), (j)(2). Consequently, we read the requirement in section 1703E(e)(2) to create an obligation to take reasonable actions to provide direct notice to veterans eligible to participate in pilot programs on the assumption that VA would have more information about veterans, while VA would provide general information to notify any other individuals eligible to participate in a pilot program. For example, one pilot program could expand access to benefits for family members or caregivers of veterans; in this case, VA would provide notice to the veterans in the area where the pilot program is operating and would provide other general information as well to reach the caregivers or family members. Another example would be a pilot program involving certain community providers or other private entities; VA would provide general information to the community so that interested parties could inquire or participate. The exact nature of the notice will vary depending upon the type of pilot program involved, and so VA will announce how it intends to inform the public, in particular, other eligible individuals and entities, through the document it publishes in the Federal Register for each pilot program. Other forms of more direct communication could include mailed letters, emails, announcements to local Veterans Service Organizations, and posting of information on the websites of VA medical centers, the VA Innovation Center website, and other online sources.

In proposed paragraph (g), VA would describe generally how it would evaluate and report on the pilot programs. Specifically, VA would evaluate each pilot program operated under this section and report its findings. Section 1703E(h) requires VA to conduct an evaluation of each model tested, including at a minimum an analysis of the quality of care furnished and the changes in spending because of that model. VA is required to make the results of the tested model available to the public in a timely fashion. Once again, because each pilot program will vary in terms of the specific outcomes involved and how it will achieve those outcomes, VA is not proposing a discrete list of measures, but will include more specific information with each proposal for a pilot program. VA proposes to base its evaluation of pilot programs on quantitative data, qualitative data, or both, depending upon the nature of the pilot program. Different types of data may be more appropriate for different pilot program models, but each type of data is instructive and could help VA determine if VA is improving access to, and the quality, timeliness and patient satisfaction of care and services, as well as creating cost savings for VA. Whenever appropriate, such evaluation will also include a survey of participants or beneficiaries to determine their satisfaction with the pilot program; this participant feedback likely would be subject to the Paperwork Reduction Act and would provide direct input regarding the effects of the pilot program. We propose to make the evaluation results available to the public on the VA Innovation Center website at https://www.innovation.va.gov/. The schedule of the release will be indicated in the proposal for each pilot program. By law, VA is required to make the results of the tested model available to the public in a timely fashion, but we again note that each model will naturally have different lengths of time for data collection and analysis. Some pilot programs may allow for real-time, or close to real-time reporting of information (for example, costs or number of appointments), while others may experience lags between an action under the pilot program and health outcomes (for example, 6-month or 12-month morbidity or mortality data). VA will identify the measures and timelines for public reporting in its pilot program proposal submission to Congress and its document in the Federal Register .

In proposed paragraph (h), VA would establish a process in regulation for the expansion of pilot programs. Section 1703E(j) authorizes VA through rulemaking to expand in scope or duration, including nationwide implementation, pilot programs if the expansion is expected to reduce spending without reducing the quality of care, or to improve the quality of patient care without increasing spending. Furthermore, VA is only permitted to expand a pilot program if the pilot program does not deny or limit the coverage or provision of benefits for individuals under chapter 17. We propose to establish through regulation a general process for expanding the scope or duration of pilot programs instead of requiring separate rulemakings for each expansion for several reasons. First, the promulgation of regulations is a lengthy process, taking on average 18-22 months for a proposed and final rule to be published and effective. Given the limitations on the length of time a pilot program could operate under this authority of only 5 years, this would effectively require VA to decide at the halfway point of a pilot program, and possibly before that, as to whether or not to expand. This may not be enough time for VA as a practical matter, which could either lead to the expansion of pilot programs that ultimately prove unsuccessful or the inability to expand pilot programs that do prove to be successful. Second, if VA were required to publish new regulations for each pilot program it wished to expand, VA's regulations would become cluttered with rules that would only be applicable for limited periods of time and locations. This would likely result in confusion regarding these provisions. Finally, we believe that by regulating the process we would use to expand pilot programs, we are meeting the requirements of the law, which does not expressly require VA proceed through notice and comment rulemaking for each expansion, but merely states that VA may expand pilot programs “through rulemaking”. This requirement merely obligates VA to allow the public to comment on how expansion would occur, which this proposal would do. Moreover, and as further discussed below, VA is taking other measures to provide the public and Congress an opportunity to review and comment on VA's proposal for expansion, which we believe would result in an opportunity for feedback similar to a subsequent notice and comment rulemaking.

Initially, we propose in paragraph (h)(1) that VA would only meet the statutory requirement of expecting a pilot program to reduce spending without reducing the quality of care or to improve the quality of patient care without increasing spending based upon an analysis of the data collected for the specific pilot and developed pursuant to proposed paragraph (g). VA also would have to provide such results to Congress through an interim report and to the public through a document in the Federal Register . This would be consistent with the general structure of the Center's authority, as any decisions regarding expansion would have to be based on publicly available data. Similarly, VA would have to decide that expansion would not deny or limit the coverage or provision of benefits for individuals under chapter 17. This is a statutory requirement, and VA's basis for making this determination would be available for public scrutiny prior to any expansion taking place. VA would propose that it would not expand a pilot program until 60 days after submitting an interim report to Congress and publishing a document in the Federal Register regarding its intent to expand a pilot program. This would provide Congress and the public 60 days to evaluate the data VA would be using as the basis for such an expansion. In the event the public or Congress do not believe the data support expansion, they would have this time to inform VA of such views. Upon the completion of the 60-day period, if VA still finds that the statutory prerequisites for expansion have been met, VA could expand a pilot program in either scope or duration, as noted below.

Proposed paragraph (h)(2) would define how VA could expand a pilot program in scope. Proposed paragraph (h)(2) would authorize VA to expand the scope of a pilot program by modifying, among other elements of a pilot program, the range of services provided, the qualifying conditions covered, the geographic location of the pilot program, or the population of eligible participants in a manner that increases participation in or benefits under a pilot program. These are the general dimensions that we believe could be expanded, as that term is used in section 1703E(j). Expansion is generally defined to mean becoming larger or more extensive, and these are the likely areas of a pilot program that could become larger or more extensive. For example, if VA were conducting a pilot program related to mental health services in Alaska for homeless veterans, and VA proposed to expand the pilot under paragraph (h)(1), VA could expand to include new beneficiary populations ( e.g., non-homeless veterans), conditions ( e.g., additional health services), or geographic locations ( e.g., outside Alaska), among others. We would permit some flexibility in the forms that expansion could occur in case there are features of a pilot program that could be made larger or more extensive that do not fall within one of these categories. Again, without knowing exactly what pilot programs will be proposed, we are unable now to state definitively in what ways we could expand such a pilot program.

In proposed paragraph (h)(3), we propose the conditions under which VA could extend the duration of a pilot program. In general, section 1703E(b) limits pilot programs to 5 years of operation. Section 1703E(j)(1), however, authorizes VA to extend the duration of a pilot program if the conditions for expansion discussed above are also met. We propose to authorize VA to extend the duration of a pilot program for up to an additional 5 years. Such extension would be subject to the same requirements related to the evaluation and reporting of data that would apply to a pilot program within the first 5 years of operation under proposed paragraph (g). We propose limiting the expansion of a pilot program to an additional 5 years because Congress recognized the potential for making successful pilots permanent in section 1703E(f)(2)(G) when it required VA to report on the feasibility and advisability of making a pilot program permanent, but there is no indication Congress intended to allow for pilot programs to run in perpetuity. Moreover, the very nature of a pilot program is that it has a beginning and an end date. Finally, on a practical and legal level, because pilot programs under this section would involve the waiver of one or more provisions of law, we believe it would create confusion over time if a pilot program were operated indefinitely without express statutory authority. We believe the balance of powers is best preserved when Congress affirmatively establishes VA's parameters through law.

In proposed paragraph (i), VA would establish its authority to make minor modifications to pilot programs approved by Congress. Section 1703E(g)(5)(A) establishes VA's options (proposing a modification to Congress for approval or terminating the pilot program) when the Secretary determines that a pilot program is not improving the quality of care or producing cost savings, but it and the rest of section 1703E are silent in terms of VA's authority to modify pilot programs when VA has not made a determination regarding whether the pilot program is improving the quality of care or producing cost savings. We anticipate there may be pilot programs that we operationalize in a way that becomes administratively difficult to continue; alternatively, some pilot programs may be operationalized in a way that does not produce clear data that would allow VA to determine if the pilot program is improving the quality of care or producing cost savings. Under proposed paragraph (i), VA could modify the pilot program in a manner that is consistent with the parameters of Congressional approval without seeking further Congressional approval for the change. Modifications that would be consistent with the parameters of Congressional approval would vary based on each pilot program, but we offer a few examples for the public's understanding. For example, VA may plan to operate a pilot program in a particular location, but later determine that this location is unsuitable for reasons beyond VA's control. For example, an anticipated pilot site may be unavailable due to a natural disaster, or interest in participation in the pilot program may be inadequate to support valid results. In these cases, it would seem a poor use of government resources to continue attempting to operate the pilot program while waiting for a subsequent Act of Congress to allow VA to select another location. As another example, VA may want to conduct a pilot program offering a particular service, but VA may later determine this service is not appropriate while another similar service would be. VA plans to submit proposals to Congress that provide it enough information to know what it is authorizing, while still providing some flexibility for VA to address potential minor corrections without further Congressional approval. In identifying geographic locations for the pilot program under paragraph (c) of this section, for example, rather than identifying specifically the VA medical centers or facilities that would participate, we anticipate providing the general criteria VA will use to identify locations ( e.g., urban areas, rural areas, highly rural areas; areas near military bases; facilities with academic affiliates, etc.) and possibly a list of facilities that could meet those requirements. This would allow VA to select another suitable location if needed. Similarly, for services that VA might provide, or populations of beneficiaries that might be included, we would attempt to describe these generally enough to allow for further modification as needed to either specify another service or another population. We are sensitive to Congress' need to conduct oversight and to understand clearly what it is authorizing when it approves a waiver, and so we limit VA's ability to modify a pilot program to changes that are consistent with the parameters of Congress' initial approval. VA could not, for example, modify a Congressionally approved pilot program on beneficiary travel to become a pilot program on the provision of care to beneficiaries otherwise ineligible for VA care. Such a change would clearly be outside the parameters of Congress' initial approval.

In proposed paragraph (j), we would define the conditions for termination of pilot programs. As noted before, section 1703E(g)(5)(A) establishes that, when the Secretary determines that a pilot program is not improving the quality of care or producing cost savings, VA's options include proposing a modification to Congress for approval or terminating the pilot program. In proposed paragraph (j), we would use the terms quality enhancement and quality preservation to reflect the statutory language related to improving the quality of care, and we would use the term reduction in expenditures to reflect the statutory language related to producing cost savings. These substitutions would be consistent with the terms as they would be defined through paragraph (b) of this section. We would also clarify that a modification that can only be achieved through submission of a new waiver request to Congress would be distinct from a modification under paragraph (i) of this section, as just discussed. Congress specifically recognized that not all pilot programs will meet or exceed their primary goals of enhancing or preserving care while reducing costs. Under proposed paragraph (j), VA would, upon determining that a pilot program is not producing quality enhancement or quality preservation, or is not resulting in the reduction of expenditures, and that it is not possible or advisable to modify the pilot program either through submission of a new waiver request under paragraph (e) or through modification under paragraph (i), terminate the pilot program within 30 days of submitting an interim report to Congress stating such determination. VA also would publish a document in the Federal Register regarding the pilot program's termination, and we would notify participants in the same manner that we notified them under paragraph (f) of their initial eligibility for the pilot program. This would ensure determinations regarding expansion and termination are made using the same methodology. This 30-day period is the maximum amount of time permitted by section 1703E(g)(5)(A)(ii).

The Code of Federal Regulations, as proposed to be revised by this proposed rulemaking, would represent the exclusive legal authority on this subject. No contrary rules or procedures would be authorized. All VA guidance would be read to conform with this proposed rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking.

This rulemaking does not contain any provisions constituting collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule would not have a significant economic impact on qualifying non-VA entities or providers. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The Office of Information and Regulatory Affairs has determined that this rulemaking is a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 through FYTD. This proposed rule is not expected to be subject to the requirements of Executive Order 13771 because this proposed rule is expected to result in no more than de minimis costs.

Executive Order 12866 also directs agencies to “in most cases . . . include a comment period of not less than 60 days.” This regulation aims to test innovative payment and service delivery models that will maintain or enhance the quality of care for beneficiaries while reducing cost. Providing a 30-day comment period will allow VA to begin pilot programs more quickly, thereby increasing opportunities for access to quality, cost-effective care to participating beneficiaries. The regulations proposed here are largely procedural, and will not, without Congressional approval of a pilot program proposal from VA, result in any change in benefits or services by themselves. Moreover, we believe that the requirement to receive Congressional approval for any waiver of authority, and VA's proposal to publish specific pilot program proposals in the Federal Register for public comment while Congressional approval is pending, should provide the public a more meaningful opportunity to comment on the actual pilot programs implemented under section 1703E. For these reasons, we believe that 30 days would be a sufficient period of time for the public to comment on this rulemaking. In sum, providing a 60-day public comment period instead of a 30-day public comment period would be against public interest. For the above reasons, VA issues this rule with a 30-day public comment period. VA will consider and address comments that are received within 30 days of the date this proposed rule is published in the Federal Register .

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

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are as follows: 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary Care

Throughout this document, “reviewing authority,” “we,” “us,” and “our” refer to the EPA.

On March 12, 2008, the EPA promulgated a new NAAQS for ozone, revising the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436). More recently, on October 1, 2015, the EPA promulgated and revised the NAAQS for ozone, further strengthening the primary and secondary 8-hour standards to 0.070 ppm (80 FR 65292). The October 1, 2015 standards are known as the 2015 ozone NAAQS.

Under sections 110(a)(1) and (2) of the CAA, after the promulgation of a new or revised NAAQS states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance, and enforcement of the NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that the existing SIPs already meet those requirements. The EPA highlighted this statutory requirement in an October 2, 2007 guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards” (2007 Memo). On September 25, 2009, the EPA issued an additional guidance document pertaining to the 2006 PM 2.5 NAAQS entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS)” (2009 Memo), followed by the October 14, 2011 “Guidance on Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)” (2011 Memo). Most recently, the EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” on September 13, 2013 (2013 Memo).

CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. These infrastructure elements include requirements such as modeling, monitoring, and emissions inventories, which are designed to assure attainment and maintenance of the NAAQS. The elements that are the subject of this action are listed below.

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures.

• 110(a)(2)(D): Interstate transport.

• 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.

• 110(a)(2)(F): Stationary source monitoring and reporting.

• 110(a)(2)(G): Emergency powers.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

A detailed discussion of each of these elements for Colorado and North Dakota is contained in section III of this document.

The Colorado and North Dakota 2015 ozone NAAQS infrastructure SIP submissions demonstrate how the states, where applicable, have plans in place that meet the requirements of section 110 for the 2015 ozone NAAQS. The state submittals are available within the electronic docket for today's proposed action at www.regulations.gov.

The Colorado Department of Public Health and Environment (CDPHE) submitted a certification of Colorado's infrastructure SIP for the 2015 ozone NAAQS on September 17, 2018. The State's submission references the current Air Quality Control Commission (AQCC) regulations and Colorado Revised Statutes (C.R.S.). The AQCC regulations referenced in the submittal are publicly available at https://www.colorado.gov/pacific/cdphe/aqcc-regs and http://www.lexisnexis.com/hottopics/colorado/. Colorado's approved SIP can be found at 40 CFR 52.320.

The North Dakota Department of Health/Department of Environmental Quality (NDEQ)  1 submitted certification for North Dakota's infrastructure SIP for the 2015 ozone NAAQS on November 6, 2018. The State's submission references the North Dakota Century Code (NDCC) and the North Dakota Air Pollution Control Rules (APCR) contained in the North Dakota Administrative Code (NDAC). The NDCC and NDAC referenced in the submittals are publicly available at http://www.legis.nd.gov/general-information/north-dakota-century-code and http://www.legis.nd.gov/cencode/t23c25.html. North Dakota's approved SIP can be found at 40 CFR 52.1820.

The EPA is acting upon the SIP submissions from Colorado and North Dakota that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2015 ozone NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon the EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

Whenever the EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS. This particular type of SIP submission is commonly referred to as an “infrastructure SIP.” These submissions must meet the various requirements of CAA section 110(a)(2), as applicable. Due to ambiguity in some of the language of CAA section 110(a)(2), the EPA finds that it is appropriate to interpret these provisions in the specific context of acting on infrastructure SIP submissions. The EPA has previously provided comprehensive guidance on the application of these provisions through a guidance document for infrastructure SIP submissions and through regional actions on infrastructure submissions. 2 Unless otherwise noted below, we are following that existing approach in acting on this submission. In addition, in the context of acting on such infrastructure submissions, the EPA evaluates the state's SIP for facial compliance with statutory and regulatory requirements, not for the state's implementation of its SIP. 3 The EPA has other authority to address any issues concerning a state's implementation of the rules, regulations, consent orders, etc. that comprise its SIP.

Section 110(a)(2)(A) requires SIPs to include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of the Act.

The State's submission and the EPA's analysis:

Multiple SIP-approved AQCC regulations cited in Colorado's certifications provide enforceable emission limitations and other control measures, means or techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2015 NAAQS subject to the following clarification.

The EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D of Title I of the CAA to be governed by the submission deadline of section 110(a)(1). Nevertheless, Colorado has included some SIP provisions originally submitted in response to part D requirements in its certification for the infrastructure requirements of section 110(a)(2).). For the purposes of this action, the EPA is reviewing any rules originally submitted in response to part D requirements solely for the purposes of determining whether they support a finding that the State has met the basic infrastructure requirements of section 110(a)(2). For example, in response to the requirement to have enforceable emission limitations under section 110(a)(2)(A), Colorado cited to rules in Regulation Number 7 that were submitted to meet the reasonably available control technology (RACT) requirements of part D. The EPA is approving those rules as meeting the requirement to have enforceable emission limitations on ozone precursors; any judgment about whether those emission limitations discharge the State's obligation to impose RACT under part D will be made separately, in an action reviewing those rules pursuant to the requirements of part D. Colorado also referenced other SIP provisions that are relevant, such as the motor vehicle inspection and maintenance program in Regulation 11 and the State's minor new source review (NSR) and Prevention of Significant Deterioration (PSD) Programs in Regulation 3. We propose to find these provisions adequately address the requirements of element (A), again subject to the clarifications made in this document.

The State's submission and the EPA's analysis:

Multiple SIP-approved State air quality regulations within the NDAC cited in North Dakota's certifications provide enforceable emission limitations and other control measures, means or techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2015 ozone NAAQS, subject to the following clarification.

The EPA does not consider the SIP requirements triggered by the nonattainment area mandates in part D of Title 1 of the CAA to be governed by the submission deadline of section 110(a)(1). Furthermore, North Dakota has no areas designated as nonattainment for the 2015 ozone NAAQS. North Dakota's certifications (contained within this docket) generally listed provisions within its SIP which regulate pollutants through various programs, including major or minor source permit programs. This suffices, in the case of North Dakota, to meet the requirements of section 110(a)(2)(A) for the 2015 ozone NAAQS.

Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to “(i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.”

(i) The State's submission:

As discussed in Colorado's submission, the Colorado Air Pollution Control Division (APCD) periodically submits a Quality Management Plan and a Quality Assurance Project Plan to the EPA. These plans cover procedures to monitor and analyze data. The provisions for episode monitoring, data compilation and reporting, public availability of information, and annual network reviews are found in the statewide monitoring SIP (58 FR 49435, September 23, 1993). As part of the monitoring SIP, Colorado submits an Annual Monitoring Network Plan (AMNP) each year for the EPA's approval.

(ii) The EPA's analysis:

A comprehensive Annual Monitoring Network Plan (AMNP), intended to fully meet the Federal requirements, was submitted to the EPA by Colorado on June 29, 2018, and subsequently approved by the EPA. We propose to find that Colorado's SIP and practices are adequate for the ambient air quality monitoring and data system requirements for the 2015 ozone NAAQS; and therefore, propose to approve the infrastructure SIP for the 2015 ozone NAAQS for this element.

(i) The State's submission:

North Dakota references NDCC 23.1-06-04.1.1 as the provision that provides authority to conduct ambient air monitoring. Additionally, North Dakota's SIP (45 FR 53475, August 12, 1980) provides for the design and operation of its monitoring network, reporting of data obtained from the monitors, and annual network review including notification to the EPA of any changes, and public notification of exceedances of NAAQS.

(ii) The EPA's analysis:

The comprehensive 2018 Annual Monitoring Network Plan (AMNP), intended to fully meet Federal requirements, was submitted to the EPA by North Dakota on October 31, 2018 and subsequently approved by the EPA. In accordance with 40 CFR 58.10, beginning in July 2008, and every five years thereafter, North Dakota develops a periodic network assessment to ensure the effective implementation of an adequate ambient air quality surveillance system. The plan includes statutory and regulatory authority to establish and operate an air quality monitoring network, including ozone monitoring.

North Dakota's SIP-approved regulations provide for the design and operation of its monitoring network, reporting of data obtained from the monitors, and annual network review including notification to the EPA of any changes, and public notification of exceedances of NAAQS. As described in its submission, North Dakota operates a comprehensive monitoring network, including ozone monitoring, compiles and analyzes collected data, and submits the data to the EPA's Air Quality System on a quarterly basis. Therefore, we are proposing to approve the North Dakota SIP as meeting the requirements of CAA section 110(a)(2)(B) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(C) requires each state to have a program that provides for the following three sub-elements; enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources; and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the 2015 ozone NAAQS as required by CAA Title I part C ( i.e., the major source PSD program).

(i) The State's submission:

The Colorado submission refers to the following SIP-approved Code of Colorado Regulations (CCR) which address and provide for meeting all requirements of CAA section 110(a)(2)(C):

(ii) The EPA's analysis:

With regard to the sub-element requirement of a program providing for enforcement of all SIP measures, we are proposing to find that Colorado's regulations provide broad authority to allow the State to enforce applicable laws, regulations, and standards; to seek injunctive relief; and to provide authority to prevent construction, modification, or operation of any stationary source at any location where emissions from such source will prevent the attainment or maintenance of a national standard or interfere with PSD requirements. Many of the AQCC regulations above address Colorado's program for enforcement of control measures. 4

Turning to the second sub-element, regulation of new and modified minor sources and minor modifications of major sources, Colorado has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act. The minor NSR program is found in Regulation 3 of the Colorado SIP. The EPA originally approved Colorado's minor NSR program into the SIP as Regulation 3 (68 FR 37744, June 25, 2003), and over the years, the EPA has subsequently approved revisions to this program as consistent with the CAA and Federal minor NSR requirements codified at 40 CFR 51.160 through 40 CFR 51.164. The State and the EPA have relied on the State's existing minor NSR program to assure that new and modified sources not captured by the major NSR permitting program do not interfere with attainment and maintenance of the NAAQS. We propose to determine that this program regulates construction of new and modified minor sources of ozone precursors for purposes of the 2015 ozone NAAQS.

Lastly, to generally meet the requirements of CAA section 110(a)(2)(C) with regard to the sub-element of preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA Title I part C, a state is required to have PSD, NNSR, and minor NSR permitting programs adequate to implement the 2015 ozone NAAQS. The EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. To meet this requirement, Colorado cited its Colorado's SIP-approved PSD program codified at 5 CCR 1001-5, known as Regulation 3. We most recently approved revisions to Colorado's PSD (and NNSR) programs on May 3, 2019 (84 FR 18991). The EPA is proposing to approve Colorado's infrastructure SIP for the 2015 ozone NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a PSD program in the SIP that covers all regulated pollutants including greenhouse gases (GHGs).

In addition to these requirements, there are four other revisions to the Colorado SIP that are necessary to meet the requirements of infrastructure element 110(a)(2)(C). These four revisions are related to (1) the Ozone Implementation NSR Update (November 29, 2005, 70 FR 71612); (2) the “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (June 3, 2010, 75 FR 31514); (3) the NSR PM 2.5 Rule (May 16, 2008, 73 FR 28321); and (4) the final rulemaking entitled “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (75 FR 64864, Oct. 20, 2010).

On January 9, 2012 (77 FR 1027), we approved revisions to Colorado's PSD program that addressed the PSD requirements of the Phase 2 Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 71612). As a result, the approved Colorado PSD program meets the current requirements for ozone.

With respect to GHGs, on June 23, 2014, the United States Supreme Court addressed the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S Ct. 2427 (2014). The Supreme Court held that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also held that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, (anyway sources)  5 contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway sources.” With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.” The EPA subsequently revised our PSD regulations to remove the vacated provisions. 80 FR 50199 (Aug. 19, 2015).

The EPA has subsequently revised our PSD regulations in response to the Court's decision and the subsequent amended judgment by the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. App'x. 6, at *7-8 (D.C. Cir. April 10, 2015). We recently approved revisions to the Colorado PSD program that are consistent with our revised regulations. See 84 FR 6732 (Feb. 28, 2019) (proposal); 84 FR 18991 (May 3, 2019) (final). Thus, Colorado's PSD program is current with respect to regulation of GHGs.

Finally, we evaluate the PSD program with respect to current requirements for PM 2.5 . In particular, on May 16, 2008, the EPA promulgated the rule, “Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )” (73 FR 28321) and on October 20, 2010, the EPA promulgated the rule, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (75 FR 64864). The EPA regards adoption of these PM 2.5 rules as a necessary requirement when assessing a PSD program for the purposes of element (C).

On January 4, 2013, the U.S. Court of Appeals, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), remanded the EPA's 2007 and 2008 rules implementing the 1997 PM 2.5 NAAQS. The Court ordered the EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” Id. at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional provisions for PM nonattainment areas.

The 2008 implementation rule addressed by the court decision, “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )” (73 FR 28321, May 16, 2008), promulgated NSR requirements for implementation of PM 2.5 in nonattainment areas (nonattainment NSR (NNSR)) and attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 only pertain to nonattainment areas, the EPA does not consider the portions of the 2008 Implementation rule that address requirements for PM 2.5 attainment and unclassifiable areas to be affected by the decision. Moreover, the EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 Implementation rule in order to comply with the court's decision. Accordingly, the EPA's proposed approval of Colorado's infrastructure SIP for elements C or J with respect to the PSD requirements promulgated by the 2008 Implementation rule does not conflict with the court's opinion.

The court's decision with respect to the NNSR requirements promulgated by the 2008 Implementation rule also does not affect the EPA's action on the present infrastructure action. The EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a NNSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.

The second PSD requirement for PM 2.5 is contained in the EPA's October 20, 2010 rule, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (75 FR 64864). The EPA regards adoption of the PM 2.5 increments as a necessary requirement when assessing a PSD program for the purposes of element (C).

On May 11, 2012, the State submitted revisions to Regulation 3 that adopted all elements of the 2008 Implementation Rule and the 2010 PM 2.5 Increment Rule. However, the submittal contained a definition of Major Source Baseline Date which was inconsistent with 40 CFR 51.166(b)(14)(i). On May 13, 2013, the State submitted revisions to Regulation 3 which incorporate the definition of Major Source Baseline Date which was consistent with 40 CFR 51.166(b)(14)(i). These submitted revisions make Colorado's PSD program up to date with respect to current requirements for PM 2.5 . The EPA approved the necessary portions of Colorado's May 11, 2012 and May 13, 2013 submissions which incorporate the requirements of the 2008 PM 2.5 Implementation Rule and the 2010 PM 2.5 Increment Rule on September 23, 2013 (78 FR 58186). Colorado's SIP-approved PSD program meets current requirements for PM 2.5 .

The EPA therefore is proposing to approve Colorado's SIP for the 2015 ozone NAAQS with respect to the requirement in section 110(a)(2)(C) to include a permit program in the SIP as required by part C of the Act.

The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act. The minor NSR program is found in Regulation 3 of the Colorado SIP, and was originally approved by the EPA as Regulation 3 of the SIP ( see 68 FR 37744, June 25, 2003). Since approval of the minor NSR program, the State and the EPA have relied on the program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS. Therefore, based on the foregoing, the EPA is proposing to fully approve Colorado's infrastructure SIP for the 2015 ozone NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved.

(i) The State's submission:

The North Dakota submission refers to the following state rules and regulations which are also SIP-approved, that address and provide for meeting all provisions and requirements of CAA section 110(a)(2)(C):

(ii) The EPA's analysis:

With regard to the sub-element requirement to have a program providing for enforcement of all SIP measures, we concur with the State that NDCC 23.1-06-14, Enforcement—Penalties—Injunctions provides the authority for enforcement and specifies penalties for violations of all North Dakota APCR (NDAPCR). Additionally, we find that NDAC 33.1-15-01-17, Enforcement, (69 FR 61762, November 22, 2004) also provides a general interpretation of enforcement for the NDAPCR, thus North Dakota meets the first sub-element for enforcement for 110(a)(2)(C).

Turning to the second sub-element of the state-wide regulation of new and modified minor sources and minor modifications of major sources, North Dakota has a SIP-approved minor NSR program. The minor NSR program is found in NDAC 33.1-15-14-02, Permit to Construct; NDAC 33.1-15-14-03, Minor Source Permit to Operate; and NDAC 33.1-15-14-06.1, Title V Permit to Operate. The EPA previously approved North Dakota's minor NSR program into the SIP, with our most recent approved revision occurring on October 21, 2016 (81 FR 72718). The EPA has approved revisions to this program as consistent with the CAA and Federal minor NSR requirements codified at 40 CFR 51.160 through 40 CFR 51.164. The State and the EPA have relied on the State's existing minor NSR program to assure that new and modified sources not captured by the major NSR permitting program do not interfere with attainment and maintenance of the NAAQS. We propose to determine that this program regulates construction of new and modified minor sources of ozone precursors for purposes of the 2015 ozone NAAQS, thereby meeting the second sub-element for regulation of minor sources and minor modifications for 110(a)(2)(C).

Lastly, to generally meet the requirements of CAA section 110(a)(2)(C) with regard to the sub-element of preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C, a state is required to have PSD, NNSR, and minor NSR permitting programs adequate to implement the 2015 ozone NAAQS.

With respect to Elements (C) and (J), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS demonstrating that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) prong 3 may also be satisfied by demonstrating the air agency has a complete PSD permitting program that applies to all regulated NSR pollutants. North Dakota has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).

On June 3, 2010 (75 FR 31291), we approved a revision to the North Dakota PSD program that addressed the PSD requirements of the Phase 2 Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 71612). We most recently approved revisions to North Dakota's PSD program on October 21, 2016 (81 FR 72718). North Dakota's SIP approved PSD program is codified in NDAC 33.1-15-15 and incorporates by reference all Federal PSD regulations. As a result, the EPA-approved North Dakota PSD program meets the current requirements for ozone.

Similarly, on October 23, 2012 (77 FR 64736), we approved a North Dakota SIP revision that revised the date of incorporation by reference of the Federal PSD program to July 2, 2010. As explained in the notice for that action, that revision addressed the PSD requirements related to GHGs provided in the EPA's June 3, 2010 “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (75 FR 31514). The approved North Dakota PSD program thus also meets current requirements for GHGs.

Based on the Supreme Court GHG decision discussion above, the EPA has determined that North Dakota's SIP is sufficient to satisfy Elements (C), (D)(i)(II) prong 3 and (J) with respect to GHGs. This is due to the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT. The approved North Dakota PSD permitting program still contains some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit's amended judgment. Nevertheless, the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements (C), (D)(i)(II) prong 3 and (J). The SIP contains the PSD requirements for applying the BACT requirement to greenhouse gas emissions from “anyway sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA's approval of North Dakota's infrastructure SIP as to the requirements of Elements (C), (D)(i)(II) prong 3, and (J).

Finally, we evaluate the PSD program with respect to current requirements for PM 2.5 . Noting the PM 2.5 discussion above the EPA's proposed approval of North Dakota's infrastructure SIP as to Elements (C), (D)(i)(II) prong 3, and (J) with respect to the PSD requirements promulgated by the 2008 Ozone Implementation rule does not conflict with the court's opinion.

The court's decision with respect to the NNSR requirements promulgated by the 2008 Implementation Rule also does not affect the EPA's action on the present infrastructure action. The EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a NNSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.

The second PSD requirement for PM 2.5 is contained in the EPA's October 20, 2010 rule, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (75 FR 64864). The EPA regards adoption of the PM 2.5 increments as a necessary requirement when assessing a PSD program for the purposes of Element (C).

On October 23, 2012 (77 FR 64736), the EPA approved SIP revisions that revised North Dakota's PSD program which incorporated the 2008 Implementation Rule. On July 30, 2013 (78 FR 45866), the EPA approved revisions to the North Dakota SIP to reflect the 2010 PM 2.5 Increment Rule. Therefore, North Dakota's SIP approved PSD program meets current requirements for PM 2.5 .

Therefore, the EPA is proposing to approve North Dakota's infrastructure SIP for the 2015 ozone NAAQS with respect to the requirement in section 110(a)(2)(C) to include a PSD permitting program in the SIP that covers the requirements for all regulated NSR pollutants as required by part C of the Act.

The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act, originally approved by the EPA on August 21, 1995 (60 FR 43401). The minor NSR program is found in NDAC 33.1-15-14-02, Permit to Construct; NDAC 33.1-15-14-03, Minor Source Permit to Operate; and NDAC 33.1-15-14-06, Title V Permit to Operate. Since approval of the minor NSR program, the State and the EPA have relied on the State's existing minor NSR program to assure that new and modified sources not captured by the major NSR permitting program do not interfere with attainment and maintenance of the NAAQS.

Therefore, based on the foregoing, the EPA is proposing to approve North Dakota's infrastructure SIP for the 2015 ozone NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the enforcement of control measures in the SIP, and the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved.

CAA section 110(a)(2)(D)(i) consists of four separate elements, or “prongs.” CAA section 110(a)(2)(D)(i)(I) requires SIPs to contain adequate provisions prohibiting emissions which will contribute significantly to nonattainment of the NAAQS in any other state (prong 1), and adequate provisions prohibiting emissions which will interfere with maintenance of the NAAQS by any other state (prong 2). CAA section 110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions prohibiting emissions which will interfere with any other state's required measures to prevent significant deterioration of its air quality (prong 3), and adequate provisions prohibiting emissions which will interfere with any other state's required measures to protect visibility (prong 4). Under section 110(a)(2)(D)(i)(I) of the CAA, the EPA and states must give independent significance to prong 1 and prong 2 when evaluating downwind air quality problems under section 110(a)(2)(D)(i)(i)(I). 6

With regard to the prong 1 and prong 2 requirements of CAA section 110(a)(2)(D)(i)(I), the EPA has addressed these requirements with respect to prior ozone NAAQS in several regional regulatory actions, including the Cross-State Air Pollution Rule (CSAPR), which addressed interstate transport with respect to the 1997 ozone NAAQS as well as the 1997 and 2006 fine PM standards, and the Cross-State Air Pollution Rule Update for the 2008 ozone NAAQS (CSAPR Update). 7 These actions only addressed interstate transport in the Eastern United States  8 and did not address the 2015 ozone NAAQS.

Through the development and implementation of CSAPR, the CSAPR Update and previous regional rulemakings pursuant to the good neighbor provision, 9 the EPA, working in partnership with states, developed the following four-step interstate transport framework to address the requirements of the good neighbor provision for the ozone NAAQS:  10 (1) Identify downwind air quality problems; (2) identify upwind states that impact those downwind air quality problems sufficiently such that they are considered “linked” and therefore warrant further review and analysis; (3) identify the emissions reductions necessary (if any), considering cost and air quality factors, to prevent linked upwind states identified in step 2 from contributing significantly to nonattainment or interfering with maintenance of the NAAQS at the locations of the downwind air quality problems; and (4) adopt permanent and enforceable measures needed to achieve those emissions reductions.

The EPA has released several documents containing information relevant to evaluating interstate transport with respect to the 2015 ozone NAAQS. First, on January 6, 2017, the EPA published a notice of data availability (NODA) with preliminary interstate ozone transport modeling with projected ozone design values for 2023, on which we requested comment. 11 The year 2023 was used as the analytic year for this preliminary modeling because that year aligns with the expected attainment year for Moderate ozone nonattainment areas. 12 On October 27, 2017, we released a memorandum (October 2017 Memo) containing updated modeling data for 2023, which incorporated changes made in response to comments on the NODA. 13 Although the October 2017 Memo released data for a 2023 modeling year, we specifically stated that the modeling may be useful for states developing SIPs to address remaining good neighbor obligations for the 2008 ozone NAAQS but did not address the 2015 ozone NAAQS. And, on March 27, 2018, we issued a memorandum (March 2018 Memo) indicating the same 2023 modeling data released in the October 2017 Memo could also be useful for evaluating potential downwind air quality problems with respect to the 2015 ozone NAAQS (step 1 of the four-step framework). The March 2018 Memo included newly available contribution modeling results to assist states in evaluating their impact on potential downwind air quality problems (step 2 of the four-step framework) in their efforts to develop good neighbor SIPs for the 2015 ozone NAAQS to address their interstate transport obligations. 14 The EPA subsequently issued two more memoranda in August and October 2018, providing guidance to states developing good neighbor SIPs for the 2015 NAAQS concerning, respectively, potential contribution thresholds that may be appropriate to apply in step 2 and considerations for identifying downwind areas that may have problems maintaining the standard (under interstate transport prong 2) at step 1 of the framework. 15

The March 2018 Memo describes the process and results of the updated photochemical and source-apportionment modeling used to project ambient ozone concentrations for the year 2023 and the state-by state impacts on those concentrations. The March 2018 Memo also explains that the selection of the 2023 analytic year aligns with the 2015 NAAQS attainment year for Moderate nonattainment areas. As described in more detail in the October 2017 and March 2018 memoranda, the EPA used the Comprehensive Air Quality Model with Extensions (CAMx version 6.40) to model average and maximum design values in 2023 to identify potential nonattainment and maintenance receptors ( i.e., monitoring sites that are projected to have problems attaining or maintaining the 2015 ozone NAAQS). The March 2018 Memo presents design values calculated in two ways: First, following the EPA's historic “3 x 3” approach 16 to evaluating all sites, and second, following a modified approach for coastal monitoring sites in which “overwater” modeling data were not included in the calculation of future year design values (referred to as the “no water” approach).

For purposes of identifying potential nonattainment and maintenance receptors in 2023, the EPA applied the same approach used in the CSAPR Update, wherein the EPA considered a combination of monitoring data and modeling projections to identify monitoring sites that are projected to have problems attaining or maintaining the NAAQS. Specifically, the EPA identified nonattainment receptors as those monitoring sites with measured values  17 exceeding the NAAQS that also have projected ( i.e., in 2023) average design values exceeding the NAAQS. The EPA identified maintenance receptors as those monitoring sites with projected maximum design values exceeding the NAAQS. This included sites with measured values below the NAAQS but with projected average and maximum design values exceeding the NAAQS, and monitoring sites with projected average design values below the NAAQS but with projected maximum design values exceeding the NAAQS. The EPA included the design values and monitoring data for all monitoring sites projected to be potential nonattainment or maintenance receptors based on the updated 2023 modeling in Attachment B to the March 2018 Memo.

After identifying potential downwind nonattainment and maintenance receptors, the EPA next performed nationwide, state-level ozone source-apportionment modeling to estimate the expected impact from each state to each nonattainment and maintenance receptor. 18 The EPA included contribution information resulting from the source-apportionment modeling in Attachment C to the March 2018 Memo. For more specific information on the modeling and analysis, please see the 2017 and March 2018 memoranda, the NODA for the preliminary interstate transport assessment, and the supporting technical documents included in the docket for this action.

In the CSAPR and the CSAPR Update, the EPA used a threshold of one percent of the NAAQS to determine whether a given upwind state was “linked” at step 2 of the four-step framework and would therefore contribute to downwind nonattainment and maintenance sites identified in step 1. If a state's impact did not equal or exceed the one percent threshold, the upwind state was not “linked” to a downwind air quality problem, and the EPA therefore concluded the state will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in the downwind states. However, if a state's impact equaled or exceeded the one percent threshold, the state's emissions were further evaluated in step 3, taking into account both air quality and cost considerations, to determine what, if any, emissions reductions might be necessary to address the good neighbor provision.

As noted previously, on August 31, 2018, the EPA issued a memorandum (August 2018 Memo) providing guidance concerning potential contribution thresholds that may be appropriate to apply with respect to the 2015 NAAQS in step 2. Consistent with the process for selecting the one percent threshold in CSAPR and the CSAPR Update, the August 2018 Memo included analytical information regarding the degree to which potential air quality thresholds would capture the collective amount of upwind contribution from upwind states to downwind receptors for the 2015 ozone NAAQS. The August 2018 Memo indicated that, based on the EPA's analysis of its most recent modeling data, the amount of upwind collective contribution captured using a 1 ppb threshold is generally comparable, overall, to the amount captured using a threshold equivalent to one percent of the 2015 ozone NAAQS. Accordingly, the EPA indicated that it may be reasonable and appropriate for states to use a 1 ppb contribution threshold, as an alternative to the one percent threshold, at step 2 of the four-step framework in developing their SIP revisions addressing the good neighbor provision for the 2015 ozone NAAQS. 19

While the March 2018 Memo presented information regarding the EPA's latest analysis of ozone transport following the approaches the EPA has taken in prior regional rulemaking actions, the EPA has not made any final determinations regarding how states should identify downwind receptors with respect to the 2015 ozone NAAQS at step 1 of the four-step framework. Rather, the EPA noted that states have flexibility in developing their own SIPs to follow different analytical approaches than the EPA's, so long as their chosen approach has an adequate technical justification and is consistent with the requirements of the CAA.

The prong 3 (PSD) requirement of CAA section 110(a)(2)(D)(II) may be met for all NAAQS by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to all regulated NSR pollutants and that satisfies the requirements of the EPA's PSD implementation rule(s). 20

To meet the prong 4 (visibility) requirement of CAA section 110(a)(2)(D)(i)(II) under the 2015 ozone NAAQS, a SIP must address the potential for interference with visibility protection caused by ozone, including precursors. An approved regional haze SIP that fully meets the regional haze requirements in 40 CFR 51.308 satisfies the 110(a)(2)(D)(i)(II) requirement for visibility protection as it ensures that emissions from the state will not interfere with measures required to be included in other state SIPs to protect visibility. In the absence of a fully approved regional haze SIP, a state can still make a demonstration that satisfies the visibility requirement section of 110(a)(2)(D)(i)(II). 21

CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement). CAA section 126 requires notification to neighboring states of potential impacts from a new or modified major stationary source and specifies how a State may petition the EPA when a major source or group of stationary sources in a state is thought to contribute to certain pollution problems in another state. CAA section 115 governs the process for addressing air pollutants emitted in the United States that cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare in a foreign country.

(i) The State's submission:

Colorado's September 17, 2018 submission includes an interstate transport analysis for prongs 1 and 2 that focused on the modeling information provided in the EPA's March 2018 Memo. The State notes that its highest projected ozone contribution to any nonattainment or maintenance receptor outside of Colorado was 0.33 ppb at site ID 484392003 in Tarrant, TX. Colorado concludes that the modeling results from the March 2018 Memo indicate that Colorado sources do not contribute significantly to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state.

To address prong 3, Colorado references the PSD program in AQCC Regulation Number 3 of the Colorado SIP, which the State asserts meets all Federal requirements and applies to all regulated pollutants. Colorado's submission states that it cannot issue a PSD permit unless the new or modified source demonstrates that emissions from the construction or operation of the facility will not cause or contribute to air pollution in any area that exceeds any NAAQS. Colorado also asserts that it cannot issue a NNSR permit unless the source shows it has obtained sufficient emissions reductions to offset increases in emissions of the pollutants for which an area is in nonattainment, consistent with reasonable further progress toward attainment. For these reasons, Colorado concludes that its SIP is sufficient to meet the prong 3 requirements of CAA section 110(a)(2)(D)(i)(II).

To address prong 4, Colorado references its EPA-approved Regional Haze SIP to demonstrate that the state does not interfere with visibility for the 2015 ozone NAAQS in any other state (77 FR 76871, December 31, 2012).

To address CAA section 110(a)(2)(D)(ii), Colorado states that there are no petitions or pending actions before the EPA under sections 115, 126(b) and 126(c) of the CAA regarding interstate or international transport. Colorado also states that its approved NSR program has a regulatory provision in place that requires notification of neighboring states of potential impacts from sources, specifically, AQCC Regulation Number 3, Part D, Section IV, provides for notice to any state, tribal governing body, Federal land manager (FLM) or local agency that may be affected by emissions from a major source or major modification subject to the PSD program. For these reasons, Colorado asserts that its SIP meets the requirements of CAA section 110(a)(2)(D)(ii) for the 2015 ozone NAAQS.

(ii) The EPA's Analysis:

The EPA primarily relied on the air quality results presented in our March 2018 Memo for our analysis of prongs 1 and 2 for Colorado. As previously discussed, the March 2018 Memo identifies potential downwind nonattainment and maintenance receptors, using the definitions applied in the CSAPR Update and using both the “3 x 3” and the “no water” approaches to calculating future year design values. The March 2018 memorandum identifies 75 potential nonattainment and maintenance receptors in the contiguous U.S. 22 The March 2018 memorandum also provides contribution data regarding the impact of other states on the potential receptors. For purposes of evaluating Colorado's 2015 ozone NAAQS interstate transport SIP submission, we propose that, at least where a state's impacts are less than one percent to downwind nonattainment and maintenance sites, it is reasonable to conclude that the state's impact will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in any other state. This is consistent with our prior action on Colorado's SIP with respect to the 2008 ozone NAAQS  23 and with the EPA's approach to both the 1997 and 2008 ozone NAAQS in CSAPR and the CSAPR Update. The EPA notes, nonetheless, that consistent with the August 2018 memorandum, it may be reasonable and appropriate for states to use a 1 ppb contribution threshold, as an alternative to a one percent threshold, at step 2 of the four-step framework in developing their SIP revisions addressing the good neighbor provision for the 2015 ozone NAAQS. However, for the reasons discussed below, it is unnecessary for the EPA to determine whether it may be appropriate to apply a 1 ppb threshold for purposes of this action.

The EPA's updated 2023 modeling discussed in the March 2018 Memo indicates that Colorado's largest impact on any potential downwind nonattainment and maintenance receptor in the United States are 0.33 ppb and 0.27 ppb, respectively. 24 These values are less than 0.70 ppb (one percent of the 2015 ozone NAAQS), 25 demonstrating that emissions from Colorado are not linked to any 2023 downwind potential nonattainment and maintenance receptors identified in the March 2018 Memo. Thus, Colorado will not impact downwind air quality problems at a level that warrants further review and analysis at step 2 of the 4-step interstate transport framework. Accordingly, we propose to conclude that emissions from Colorado will not contribute to any potential receptors, and thus, will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in any other state.

We also note that the EPA has assessed potential transport to the Shoshone-Bannock Tribes of the Fort Hall Reservation in southeast Idaho, which the EPA approved to be treated as an affected downwind state for CAA sections 110(a)(2)(D) and 126. While the Shoshone-Bannock Tribes do not operate an ozone monitor, the nearest ozone monitors to the Fort Hall Reservation are in Ada County, Idaho, in the Boise area and in Butte County, Idaho, in the Idaho Falls area. As discussed previously, the EPA's modeling did not identify receptors in Idaho and the ozone monitoring sites nearest to the Fort Hall Reservation were projected to remain below the current standard. For the Idaho Falls area monitoring site (Site ID 160230101), which had a 2014-2016 design value of 60 ppb, the EPA's modeling projects a 2023 maximum design value of 60.2 ppb and a 2023 average design value of 59.6 ppb, both below the 70 ppb standard. For the Boise area monitoring site with the highest projected ozone concentrations (Site ID 160010017), which had a 2014-2016 design value of 67 ppb, the EPA's modeling projects a 2023 maximum design value of 59.8 ppb and a 2023 average design value of 59.4 ppb. 26 We therefore propose to find that emissions from Colorado will not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS at the Fort Hall Reservation.

As noted, the PSD portion of section 110(a)(2)(D)(i)(II) may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to all regulated NSR pollutants and that satisfies the requirements of the EPA's PSD implementation rule(s). 27 As noted in Section III.(c)(1) of this proposed action, Colorado has such a program, and the EPA is therefore proposing to approve Colorado's SIP for the 2015 ozone NAAQS with respect to the requirement in section 110(a)(2)(C) to include a permit program in the SIP as required by part C of the Act.

As stated in the 2013 Memo, in-state sources not subject to PSD for any one or more of the pollutants subject to regulation under the CAA because they are in a nonattainment area for a NAAQS related to those particular pollutants may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state. One way a state may satisfy prong 3 with respect to these sources is by citing EPA-approved NNSR provisions addressing any pollutants for which the state has designated nonattainment areas. Colorado has a SIP-approved NNSR program that ensures regulation of major sources and major modifications in nonattainment areas. 28

As Colorado's SIP meets PSD requirements for all regulated NSR pollutants, and contains a fully approved NNSR program, the EPA is proposing to approve the infrastructure SIP submission as meeting the applicable requirements of prong 3 of section 110(a)(2)(D)(i) for the 2015 ozone NAAQS.

In our prong 4 review, the EPA primarily reviewed Colorado's regional haze SIP. Colorado submitted a regional haze SIP to the EPA on May 25, 2011. The EPA approved Colorado's regional haze SIP on December 31, 2012 (77 FR 76871). Colorado submitted an updated regional haze SIP to the EPA on May 26, 2017, to incorporate an updated Best Available Retrofit Technology (BART) limit for Craig Unit 1 and an updated reasonable progress determination to incorporate a new limit for the Nucla Station. The EPA approved these updates to the Colorado regional haze SIP in a final action published July 5, 2018 (83 FR 31332). Because Colorado has a fully approved regional haze SIP, we are proposing to approve the Colorado SIP as meeting the requirements of element 4 of CAA section 110(a)(2)(D)(i) for the 2015 ozone NAAQS.

Regarding CAA section 110(a)(2)(D)(ii), Colorado's SIP approved PSD program requires notice to states whose lands may be affected by the emissions of sources subject to PSD, as required by 40 CFR 51.166(q)(2)(iv). 29 This suffices to meet the notice requirement of section 126(a). Colorado also has no pending obligations under sections 126(c) or 115(b). Therefore, the Colorado SIP currently meets the requirements of those sections. In summary, the SIP satisfies the requirements of CAA section 110(a)(2)(D)(ii) for the 2015 ozone NAAQS.

(i) The State's submission:

In its November 6, 2018 submission, North Dakota's transport analysis for prongs 1 and 2 focused on the modeling information provided in the EPA's March 2018 Memo. North Dakota notes that the maximum concentration of ozone that North Dakota sources are projected to contribute to any nonattainment or maintenance receptor in the March 2018 Memo is 0.23 ppb, substantially less than the one percent significant contribution level. North Dakota also states that it reviewed the modeled emissions inventory from the March 2018 Memo and determined that the 2011 base emissions inventory is correct, and the 2023 projected emissions are reasonable. For these reasons, North Dakota concludes that sources in its state do not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state.

To address prong 3, North Dakota asserts that new major sources and modifications of existing major sources are subject to review for all regulated NSR pollutants in accordance with North Dakota's EPA-approved PSD program in the SIP. Specifically, North Dakota references its incorporation by reference of the Federal PSD program into the North Dakota SIP at 33.1-15-15, which it has incorporated through July 1, 2018. North Dakota notes that these rules incorporate all existing requirements for ozone.

To address prong 4, North Dakota points to existing portions in the North Dakota SIP to certify that the State meets the visibility requirements of section 110(a)(2)(D)(i). North Dakota specifically references the North Dakota regional haze SIP as well as the EPA's regional haze FIP, asserting that together the SIP and FIP provide all measures necessary to achieve North Dakota's fair share of emissions reductions based on that regional process. 30 The State also references the PSD (NDAC 33-15-15.1) and Visibility Protection (NDAC 33-15-19.1) portions of its SIP, both of which address visibility impairment. North Dakota's submission also included analysis of regional haze 5-year progress reports for Federal Class I areas in neighboring states to which North Dakota was initially modeled to significantly contribute to visibility impairment. 31 North Dakota asserts that these Class I areas are either meeting their reasonable progress goals or, in the case of Medicine Lake in Montana, is not meeting its reasonable progress goals due to international sources rather than sources in North Dakota. North Dakota concludes that its sources are making reasonable progress in remedying visibility impairment in North Dakota's Class I areas and are not interfering with other states plans for visibility improvement in their Class I areas, and therefore the state meets the requirements of CAA section 110(a)(2)(D)(i)(II), prong 4, for the 2015 ozone NAAQS.

To address CAA section 110(a)(2)(D)(ii), North Dakota states that provisions in the PSD portion of its SIP, specifically NDAC-33.1-15-15-01.2.1(q)(2)(d), require notification of neighboring states whose land may be significantly affected by emissions from a new or modified source in North Dakota. North Dakota also states that no sources within North Dakota are the subject of an active finding under CAA section 126 with respect to any pollutant, and that there are no findings under CAA section 115 against North Dakota with respect to any pollutant. For these reasons, North Dakota concludes that its SIP meets the requirements of CAA section 110(a)(2)(D)(ii).

(ii) The EPA's analysis:

The EPA primarily relied on the air quality results presented in our March 2018 Memo for our analysis of prongs 1 and 2 for North Dakota. As previously discussed, the March 2018 Memo identifies potential downwind nonattainment and maintenance receptors, using the definitions applied in the CSAPR Update and using both the “3 x 3” and the “no water” approaches to calculating future year design values. The March 2018 memorandum identifies 75 potential nonattainment and maintenance receptors in the contiguous U.S. The March 2018 memorandum also provides contribution data regarding the impact of other states on the potential receptors. For purposes of evaluating North Dakota's 2015 ozone NAAQS infrastructure SIP submission, we propose that, at least where a state's impacts are less than one percent to downwind nonattainment and maintenance sites, it is reasonable to conclude that the state's impact will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in any other state. This is consistent with our prior action on North Dakota's SIP with respect to the 2008 ozone NAAQS  32 and with the EPA's approach to both the 1997 and 2008 ozone NAAQS in CSAPR and the CSAPR Update. The EPA notes, nonetheless, that consistent with the August 2018 memorandum, it may be reasonable and appropriate for states to use a 1 ppb contribution threshold, as an alternative to a one percent threshold, at step 2 of the four-step framework in developing their SIP revisions addressing the good neighbor provision for the 2015 ozone NAAQS. However, for the reasons discussed below, it is unnecessary for the EPA to determine whether it may be appropriate to apply a 1 ppb threshold for purposes of this action.

The EPA's updated 2023 modeling discussed in the March 2018 Memo indicates that North Dakota's largest impact on any potential downwind nonattainment and maintenance receptor in the United States are 0.23 ppb and 0.15 ppb, respectively. 33 These values are less than 0.70 ppb (one percent of the 2015 ozone NAAQS), 34 and as a result, demonstrate that emissions from North Dakota are not linked to any 2023 downwind potential nonattainment and maintenance receptors identified in the March 2018 Memo. Accordingly, we propose to conclude that emissions from North Dakota will not contribute to any potential receptors, and thus, the state will not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in any other state.

We also note that the EPA has assessed potential transport to the Shoshone-Bannock Tribes of the Fort Hall Reservation in southeast Idaho, which the EPA approved to be treated as an affected downwind state for CAA sections 110(a)(2)(D) and 126. While the Shoshone-Bannock Tribes do not operate an ozone monitor, the nearest ozone monitors to the Fort Hall Reservation are in Ada County, Idaho, in the Boise area and in Butte County, Idaho, in the Idaho Falls area. As discussed previously, the EPA's modeling did not identify receptors in Idaho and the ozone monitoring sites nearest to the Fort Hall Reservation were projected to remain below the current standard. For the Idaho Falls area monitoring site (Site ID 160230101), which had a 2014-2016 design value of 60 ppb, the EPA's modeling projects a 2023 maximum design value of 60.2 ppb and a 2023 average design value of 59.6 ppb, both below the 70 ppb standard. For the Boise area monitoring site with the highest projected ozone concentrations (Site ID 160010017), which had a 2014-2016 design value of 67 ppb, the EPA's modeling projects a 2023 maximum design value of 59.8 ppb and a 2023 average design value of 59.4 ppb. 35 We therefore propose to find that emissions from North Dakota will not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS at the Fort Hall Reservation.

As noted, the PSD portion of section 110(a)(2)(D)(i)(II) may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to all regulated NSR pollutants and that satisfies the requirements of the EPA's PSD implementation rule(s). 36 As noted in Section III.(c)(2) of this proposed action, North Dakota has such a program, and the EPA is therefore proposing to approve North Dakota's SIP for the 2015 ozone NAAQS with respect to the requirement in section 110(a)(2)(C) to include a permit program in the SIP as required by part C of the Act.

As stated in the 2013 Memo, in-state sources not subject to PSD for any one or more of the pollutants subject to regulation under the CAA because they are in a nonattainment area for a NAAQS related to those particular pollutants may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state. North Dakota does not contain any nonattainment areas. The consideration of NNSR for prong 3 is therefore not relevant as all major sources locating in the state are subject to PSD. As North Dakota's SIP meets PSD requirements for all regulated NSR pollutants, and North Dakota does not contain any nonattainment areas, the EPA is proposing to approve the infrastructure SIP submission as meeting the applicable requirements of prong 3 of section 110(a)(2)(D)(i) for the 2015 ozone NAAQS.

For the EPA's prong 4 analysis for North Dakota, the EPA reviewed several pieces of information including the North Dakota regional haze SIP and FIP. The 2013 Memo lays out two ways in which a state's infrastructure SIP submittal may satisfy prong 4. One way is through a state's confirmation in its infrastructure SIP submittal that it has an EPA-approved regional haze SIP in place. Alternatively, in the absence of a fully approved regional haze SIP, a state can make a demonstration in its infrastructure SIP submittal that emissions within its jurisdiction do not interfere with other states' plans to protect visibility. Such a submittal should point to measures in the SIP that limit visibility-impairing pollutants and ensure that the resulting reductions conform to any mutually agreed emission reductions under the relevant regional haze regional planning organization (RPO) process. 37

North Dakota worked through its RPO, the Western Regional Air Partnership (WRAP), to develop strategies to address regional haze. To help states in establishing reasonable progress goals for improving visibility in Class I areas, the WRAP modeled future visibility conditions based on the mutually agreed emissions reductions from each state. The WRAP states then relied on this modeling in setting their respective reasonable progress goals. As a result, we consider emissions reductions from measures in North Dakota's SIP that conform with the level of emission reductions the State agreed to include in the WRAP modeling to meet the visibility requirement of CAA section 110(a)(2)(D)(i)(II).

In this action, we are proposing to disapprove North Dakota's prong 4 infrastructure SIP submittal for the 2015 ozone NAAQS. The EPA's disapproval of the North Dakota regional haze SIP included the specific disapprovals of North Dakota's selection of nitrogen oxides (NO X ) BART for Great River Energy's Coal Creek Station and the state's reasonable progress determination for Basin Electric's Antelope Valley Station (77 FR 20894, April 6, 2012). Based on the EPA's disapproval of these portions of North Dakota's regional haze SIP, we propose to determine that North Dakota's SIP does not include measures needed to ensure that its emissions will not interfere with other states' plans to protect visibility from the effects of NAAQS pollutants impacted by NO X . Specifically, NO X is a precursor of ozone, and is also a term which refers to both nitrogen oxide (NO) and nitrogen dioxide (NO 2 ). The EPA is therefore proposing to disapprove prong 4 of North Dakota's infrastructure SIP with regard to the 2015 ozone NAAQS.

If the EPA disapproves an infrastructure SIP submission for prong 4, as we are proposing, a FIP obligation will be created. However, the EPA was previously under an obligation to promulgate a FIP for North Dakota that corrects all regional haze SIP deficiencies (77 FR 20894, April 6, 2012). Therefore, there will be no additional practical consequences from the disapproval for the State, the sources within its jurisdiction, or the EPA, as this disapproval will not add any new FIP obligation for the EPA ( See 2013 Memo at 34-35). Additionally, since the infrastructure SIP submission is not required under CAA title I part D or in response to a SIP call under CAA section 110(k)(5), mandatory sanctions under CAA section 179 would not apply. Id.

For the EPA's analysis of CAA section 110(a)(2)(D)(ii), we reviewed the sections of the North Dakota SIP referenced by the State in its 2015 Ozone infrastructure SIP submission. As required by 40 CFR 51.166(q)(2)(iv), North Dakota's SIP-approved PSD program requires notice of proposed new sources or modifications to states whose lands may be significantly affected by emissions from the source or modification ( see NDAC 33-15-15-01.2.1(q)(2)(d)). This provision satisfies the notice requirement of section 126(a). North Dakota also has no pending obligations under sections 126(c) or 115(b). Therefore, the North Dakota SIP currently meets the requirements of those sections. On these bases, the EPA is proposing to find that the North Dakota SIP meets the requirements of CAA section 110(a)(2)(D)(ii) for the 2015 ozone NAAQS.

Section 110(a)(2)(E)(i) requires states to provide necessary assurances that the State will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of Federal or state law from carrying out the SIP or portion thereof). Section 110(a)(2)(E)(ii) requires each state to comply with the requirements respecting state boards under CAA section 128. Section 110(a)(2)(E)(iii) requires states to “provide necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any [SIP] provision, the State has responsibility for ensuring adequate implementation of such [SIP] provision.”

The State's submission and the EPA's analysis:

Sub-elements (i) and (iii): Adequate personnel, funding, and legal authority under state law to carry out its SIP, and related issues.

Colorado Revised Statutes, specifically the Colorado Air Pollution Prevention and Control Act (APPCA) Sections 25-7-105, 25-7-11, 42-4 301, to 42-4-414 and Article 7 of Title 25, provide adequate authority for the State of Colorado APCD and AQCC to carry out its SIP obligations with respect to the 2015 ozone NAQQS. The submission states the APCD has an annual budget to operate its six programs which employs 176 people, and for fiscal year 2018 the APCD had a budget of $18 million. The budget indicates that 50 percent of funding was derived from stationary source fees, 30 percent being from mobile source fees, 17 percent from Federal grants, and the remaining three percent coming from other cash sources.

The State also receives Sections 103 and 105 grand funds through its Performance Partnership Grant (PPG) along with required state matching funds to provide funding necessary to carry out Colorado's SIP requirements. The regulations cited by Colorado in their certifications and contained within this docket also provide the necessary assurances that the State has responsibility for adequate implementation of SIP provisions by local governments. Therefore, we propose to approve Colorado's SIP as meeting the requirements of section 110(a)(E)(i) and (E)(iii) for the 2015 ozone NAAQS.

Sub-element (ii): State boards.

Section 110(a)(2)(E)(ii) requires each state's SIP to contain provisions that comply with the requirements of section 128 of the CAA. Section 128 requires SIPs to contain two explicit requirements: (i) That any board or body which approves permits or enforcement orders under the CAA shall have at least a majority of members who represent the public interest and do not derive a significant portion of their income from persons subject to such permits and enforcement orders; and (ii) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. 38

On April 10, 2012 (77 FR 21453) the EPA approved the Procedural Rules, Section 1.11.0, as adopted by the AQCC on January 16, 1998, into the Colorado SIP as meeting the requirements of section 128 of the Act. Section 1.11.0 specifies certain requirements regarding the composition of the AQCC and disclosure by its members of potential conflicts of interest. Details on how this portion of the Procedural Rules meet the requirements of section 128 are provided in our January 4, 2012 proposal document (77 FR 235). In our April 10, 2012 action, we correspondingly approved Colorado's infrastructure SIP for the 1997 ozone NAAQS for element (E)(ii). Colorado's SIP continues to meet the requirements of section 110(a)(2)(E)(ii), and we propose to approve Colorado's infrastructure SIP for the 2015 ozone NAAQS for this element.

The State's submission and the EPA's analysis:

Sub-elements (i) and (iii): Adequate personnel, funding, and legal authority under state law to carry out its SIP, and related issues.

The North Dakota submission cites NDCC 23.1-06-04.1.1 which provides the NDEQ adequate personnel, funding, and legal authority to carry out its SIP and related issues. In addition, the NDEQ currently has 17 full time staff dedicated to permitting of new or modified sources of air pollution and the enforcement of the APCR. NDCC 23-25-03.1 provides adequate authority for the State of North Dakota and the NDEQ to carry out its SIP obligations with respect to the 2015 ozone NAAQS. North Dakota's resources meet the requirements of CAA section 110(a)(2)(E).

We propose to approve North Dakota's SIP as meeting the requirements of section 110(a)(2)(E)(i) and (E)(iii) for the 2015 ozone NAAQS.

Sub-element (ii): State boards.

Section 110(a)(2)(E)(ii) requires each state's SIP to contain provisions that comply with the requirements of section 128 of the CAA. Section 128 requires SIPs to contain two explicit requirements: (i) That any board or body which approves permits or enforcements orders under the CAA shall have at least a majority of members who represent the public interest and do not derive a significant portion of their income from persons subject to such permits and enforcement orders; and (ii) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. On July 30, 2013 (78 FR 45866) the EPA approved revised language in North Dakota's SIP, chapter 2, section 15, Respecting Boards that addresses conflict of interest requirements. Details on how this portion of chapter 2, section 15 meets the requirements of CAA section 128 are provided in the May 13, 2013 proposal document (78 FR 27888). North Dakota's SIP continues to meet the requirements of section 110(a)(2)(E)(ii), and we propose to approve the infrastructure SIP for the 2015 ozone NAAQS for this element.

Section 110(a)(2)(F) requires the SIP to require, as may be prescribed by the EPA: (i) The installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) Periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) Correlation of such reports by the state agency with any emission limitations or standards established pursuant to the Act, which reports shall be available at reasonable times for public inspection.

The State's submission and the EPA's analysis:

The Colorado AQCC Regulations listed in the State's certifications (Regulations 1, 3, 7, and Common Provisions Regulation) and contained within this docket provide authority to establish a program for measurements and testing of sources, including requirements for sampling and testing. Air Pollutant Emission Notice (APEN) requirements are defined in Regulation 3 and requires stationary sources to report their emissions on a regular basis through APENs. Regulation 3 also requires monitoring to be performed in accordance with EPA-accepted procedures, and recordkeeping of air pollutants. Additionally, Regulation 3 provides for a permitting program that establishes emission limitations and standards. Emissions must be reported by sources to the state for correlation with applicable emissions limitations and standards. Monitoring may be required for both construction and operating permits.

Additionally, Colorado is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System (EIS). States report emissions data for six criteria pollutants and their associated precursors—NO X , sulfur dioxide (SO 2 ), ammonia, Pb, carbon monoxide (CO), PM, and volatile organic compounds (VOCs). Colorado made its latest update to the NEI on March 5, 2019. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the website http://www.epa.gov/ttn/chief/eiinformation.html.

Based on the analysis above, we propose to approve the Colorado's SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2015 ozone NAAQS.

The State's submission and the EPA's analysis:

The North Dakota statutory provisions listed in the State's certifications (NDCC 23-25-03) and contained within this docket provide authority to establish a program for measurement and testing of sources, including requirements for sampling and testing. North Dakota's SIP-approved minor source and PSD programs provide for monitoring, recordkeeping, and reporting requirements for sources subject to minor and major source permitting. The State cites several regulations (NDAC 33-15-14-02.9.1, 33-15-14-03.6.1, 33-15-14-06.5.1 and contained within this docket) requiring monitoring of emissions from stationary sources, recordkeeping, and reporting of emissions, monitoring date. Source surveillance is also addressed in Chapter 8 of the SIP. The chapter provides for the permitting of sources, inspection of the sources, recordkeeping and reporting by sources, and compliance determinations. Section 8.2 of the SIP commits the NDEQ of the correlation of data with the applicable requirements. All reports are available for public inspection in accordance with NDAC 33-15-01-16.1.1. Additionally, North Dakota is required to submit emissions data to the EPA for purposes of the NEI, as detailed above.

Based on the analysis above, we propose to approve North Dakota SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2015 ozone NAAQS.

Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to “provide for authority comparable to that in [CAA Section 303] and adequate contingency plans to implement such authority.”

Under CAA section 303, the Administrator has authority to immediately restrain an air pollution source that presents an imminent and substantial endangerment to public health or welfare, or the environment. If such action may not practicably assure prompt protection, then the Administrator has authority to issue temporary administrative orders to protect the public health or welfare, or the environment, and such orders can be extended if the EPA subsequently files a civil suit.

The State's submission and the EPA's analysis:

APPCA Sections 25-7-112 and 25-7-113 provide APCD with general emergency authority comparable to that in section 303 of the Act. APPCA section 25-7-112(1) provides the Division of Administration in the CDPHE with the authority to maintain civil actions over the sources of air pollution discharges that constitute “a clear, present, and immediate danger to the environment or to the health of the public.” Specifically, the APCD can seek a “temporary restraining order, temporary injunction, or permanent injunction as provided for in the Colorado rules of civil procedure” (C.R.S. section 25-7-112(1)(b)). This authority extends to discharges that constitute “an immediate danger to the welfare of the public because such pollutants make habitation of residences or the conduct of businesses subjected to the pollutants extremely unhealthy or disruptive.” (C.R.S. Section 25-7-113(1)).

These civil actions may be maintained “in any district court of this state for the district in which the said activity or discharge is occurring.” (C.R.S. Sections 25-7-112(1)(b); 25-7-113(1)(b)). Additionally, the action “shall be given precedence over all other matters pending in such district court.” ( Id ). As such, Colorado law provides statutory authority over sources of air pollution discharges that cause an “immediate danger” to public health, welfare, or the environment. This authority allows for the pursuit of immediate relief and provides precedence for such matters. Therefore, Colorado has comparable judicial authority to that provided to the Administrator in Section 303.

Similarly, APPCA section 25-7-112(1)(a) provides the APCD with the authority to issue “cease-and-desist orders . . . requiring immediate discontinuance of such activity or the discharge of such pollutant into the atmosphere” when the activity or discharge “constitutes a clear, present, and immediate danger to the environment or to the health of the public.” (C.R.S. Section 25-7-112(1)(a)). Further, “upon receipt of such order, such person shall immediately discontinue such activity or discharge.” ( Id ). This authority extends to discharges that constitute “an immediate danger to the welfare of the public because such pollutants make habitation of residences or the conduct of businesses subjected to the pollutants extremely unhealthy or disruptive.” (C.R.S. Section 25-7-113(1)).

These provisions also allow the APCD to “both issue such a cease-and-desist order and apply for any such restraining order or injunction” (C.R.S. Sections 25-7-112(1)(c); 25-7-113(c)). Colorado law provides administrative authority over sources of air pollution discharges that cause an “immediate danger” to public health, welfare, or the environment. Furthermore, C.R.S. Sections 25-7-112(2)(b) allows the Governor to declare a state of air pollution emergency and take any and all actions necessary to protect the health of the public. This authority is comparable to that provided to the Administrator in Section 303.

The SIP therefore meets the requirements of 110(a)(2)(G). Based on the above analysis, we propose approval of Colorado's SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2015 ozone NAAQS.

The State's submission and the EPA's analysis:

Chapter 23-25 of the NDCC provides relevant language and authority for “Air Pollution Control.” The purpose of this chapter is “to achieve and maintain the best air quality possible” and to “protect human health, welfare and property, [and] prevent injury to plant and animal life” (NDCC 23-25-01.1(2)). NDCC 23-25-01.1 defines “air pollution” as “the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as is or may be injurious to human health, welfare, or property, animal or plant life, or which unreasonably interferes with the enjoyment of life or property.” As such, the chapter aims to protect all three areas required by section 303; human health, welfare, and environment. The “Air Pollution Control” chapter provides general grants of authority to maintain actions in certain situations. We find these grants provide comparable authority to that provided in Section 303. Furthermore, the NDAC 33-15-01-15.1(1) makes it unlawful to “permit or cause air pollution” as defined in NDCC 23-25-01.1. A person causing or contributing to emissions that endanger public health, welfare, or the environment, would be causing “air pollution” within the meaning of North Dakota law, and would therefore be in violation of NDAC 33-15-01-15.1(1). This could occur in either an emergency or non-emergency situation.

NDCC 23-25-10.1(5) provides that “the department has the authority to maintain an action in the name of the state against any person to enjoin any threatened or continuing violation of any provision of this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter.” Under NDCC 23-25-10.1(5), the NDEQ has the authority to bring an action to enjoin a violation of NDCC 23-25.1 or its rules. The NDEQ may seek a court order to restrain a source from causing or contributing to emissions that endanger public health, welfare, or the environment. In an emergency, this may take the form of an injunction or temporary restraining order ( see NDCC 32-06-02.1). Therefore, the NDEQ has the authority to seek judicial actions during emergency situations.

North Dakota's statutes also provide the NDEQ with the authority to issue administrative orders and emergency rules to protect the public health, welfare, and the environment under certain circumstances. NDCC 23-25-08.1, as cited in North Dakota's SIP submittals, authorizes that in the event of “an emergency requiring immediate action to protect the public health and safety,” the NDEQ has the authority to “issue an order reciting the existence of such emergency and requiring that such action be taken as is necessary” to meet the emergency. The emergency order is effective immediately. Any person who violates the order is subject to enforcement, penalties, and injunctions under NDCC 23-25-10.1.

Furthermore, as cited in North Dakota's SIP submittals, the NDEQ has the authority to “use an emergency adjudicative proceeding, in its discretion, in an emergency situation involving imminent peril to the public health, safety, or welfare” (NDCC 28-32-32.1). Accordingly, “in an emergency, the administrative agency may take action pursuant to a specific statute as is necessary to prevent or avoid imminent peril to the public health, safety, or welfare” (NDCC-28-32-32.1.1). In the absence of a specific statute requiring other administrative action, “the administrative agency shall issue an order” (NDCC 28-32-32.1(4)).

Further supplemental authority is found in a broad provision, cited by the State in their SIP submittals, granting additional authority to the NDEQ. The NDEQ has the authority to “[i]ssue such orders as may be necessary to effectuate the purposes” of the “Air Pollution Control” chapter NDCC 23-25-03.5.1. These orders can be enforced “by all appropriate administrative and judicial procedures” (NDCC 23-25-03.5.1). Thus, this broad grant of authority includes the authority to issue administrative orders during air pollution emergencies which would disrupt protection of human health, welfare, and animal and plant life.

The combination of NDCC and NDAC provisions discussed above provide for authority comparable to section 303 to immediately bring suit to restrain, issue emergency orders against, and use special rule adoption procedures for applicable emergencies to take prompt administrative action against, any person causing or contributing to air pollution that presents an imminent and substantial endangerment to public health or welfare, or the environment. We propose that they are sufficient to meet the authority requirement of CAA section 110(a)(2)(G).

States must also have adequate contingency plans adopted into their SIP to implement the air agency's emergency episode authority (as discussed above). Requirements for contingency plans are set forth in 40 CFR part 51, subpart H.

Subpart H of 40 CFR part 51 requires states to classify regions and to develop contingency plans (also known as emergency episode plans) after ambient concentrations of certain criteria pollutants in an area have exceeded specified levels. For example, if ambient concentrations of NO 2 in an area have exceeded 0.06 parts per million (ppm) (annual arithmetic mean), then the area is classified as a Priority I region, and the state must develop a contingency plan that meets the requirements of §§ 51.151.1 and 51.152.1 North Dakota has not monitored any values above the priority cut point for ozone or NO 2 .

Prevention of air pollution emergency episodes is addressed in Section 5 of North Dakota's SIP, which was approved on May 31, 1972 (37 FR 10842). We find that North Dakota's air pollution emergency provisions establish stages of episode criteria (Section 5.2), provide for public announcement whenever any episode stage has been determined to exist (Section 5.3), and specify emission control actions to be taken at each episode stage (Section 5.5) consistent with the EPA emergency episode SIP requirements set forth at the 40 CFR part 51, subpart H (prevention of air pollution emergency episode) for ozone and NO 2 .

Based on the above analysis, we propose approval of North Dakota's SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2015 ozone NAAQS.

Section 110(a)(2)(H) requires that SIPs provide for revision of such plan: (i) From time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii), except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under this [Act].

The State's submission and the EPA's analysis:

The Colorado submission refers to the Colorado APPCA Section 25-7-105(1)(a)(I) which directs the AQCC to promulgate a comprehensive SIP that meets all Federal requirements and to revise the SIP whenever necessary or appropriate. In addition, the Colorado APPCA Section 25-7-109 C.R.S. gives the AQCC the authority to promulgate emissions control regulations.

Colorado's statutory provision at APPCA Section 25-7-105(1)(a)(I) directs the AQCC to promulgate a comprehensive SIP that meets all Federal requirements and to revise the SIP whenever necessary or appropriate. Therefore, we propose to approve Colorado's SIP as meeting the requirements of CAA section 110(a)(2)(H).

The State's submission and the EPA's analysis:

The EPA approved section 1.14 of the North Dakota SIP on September 17, 2012 (77 FR 57029). Section 1.14 commits the State to revise the SIP in the circumstances covered by CAA section 110(a)(2)(H). North Dakota's statutory provision at NDCC 23-25-03.1 provides adequate authority for the NDEQ to carry out such revisions. Therefore, we propose to approve North Dakota's SIP as meeting the requirements of CAA section 110(a)(2)(H).

There are two elements identified in CAA section 110(a)(2) are not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are due on nonattainment area plan schedules pursuant to section 172 and the various pollutant-specific subparts 2 through 5 of part D. These are submissions required by: (i) CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, Title I of the CAA, and (ii) section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. As a result, this action does not address CAA section 110(a)(2)(C) with respect to NNSR or CAA section 110(a)(2)(I).

CAA section 110(a)(2)(J) requires states to provide a process for consultation with local governments and FLMs pursuant to CAA section 121. CAA section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances pursuant to CAA section 127. Lastly, CAA section 110(a)(2)(J) requires states to meet applicable requirements of part C, Title I of the CAA related to prevention of significant deterioration and visibility protection.

(i) State's submission:

The Colorado submission references the following laws and regulations relating to consultation with identified officials on certain air agency actions; public notification; PSD; and visibility protection:

• APPCA 25-7-105(1)(d).

• APPCA 25-7-118.

• APPCA 25-7-128.

• AQCC Regulation 3 (Stationary Source Permitting and Air Pollution Emission Notice Requirements).

• AQCC Regulation 6 (Standards of Performance for New Stationary Sources).

• AQCC Regulation 10, Part III (Transportation Conformity Rule).

• Colorado's Regional Haze SIP.

• Colorado's Interstate Transport SIP.

(ii) The EPA's analysis:

Colorado has demonstrated that it has the authority and rules in place to provide a process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any FLM having authority over Federal land to which the SIP applies, consistent with the requirements of CAA section 121. Moreover, the EPA previously addressed the requirements of CAA section 127 for the Colorado SIP and determined public notification requirements are appropriate (45 FR 53147, Aug. 11, 1980).

Addressing the requirement in CAA section 110(a)(2)(J) that the SIP meet the applicable requirements of part C, Title I of the CAA, we have evaluated this requirement in the context of CAA section 110(a)(2)(C). The EPA most recently approved revisions to Colorado's PSD program on May 3, 2019 (84 FR 18991), updating the program for current Federal requirements. Therefore, we are proposing to approve the Colorado SIP as meeting the requirements of CAA 110(a)(2)(J) with respect to PSD for the 2015 ozone NAAQS.

With regard to applicable visibility protection requirements, the EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the Act. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Consequently, we find that there is no new applicable requirement relating to visibility triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes effective.

Based on the above analysis, we are proposing to approve the Colorado SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2015 ozone NAAQS.

(i) State's submission:

The North Dakota submission references the following specific laws and regulations relating to consultation with identified officials on certain air agency actions, public notification, prevention of significant deterioration, and visibility protection:

(ii) EPA's analysis:

North Dakota has demonstrated that it has the authority and rules in place to provide for a process of consultation with local governments, designated organizations of elected officials of local governments and any FLM having authority over Federal land to which the SIP applies, consistent with the requirements of CAA section 121. Moreover, the EPA previously addressed the requirements of CAA section 127 for the North Dakota SIP and determined public notification requirements are appropriate (45 FR 53475, Aug. 12, 1980).

Addressing the requirement in CAA section 110(a)(2)(J) that the SIP meet the applicable requirements of part C, Title I of the CAA, we have evaluated this requirement in the context of CAA section 110(a)(2)(C). The EPA most recently approved revisions to North Dakota's PSD program on June 3, 2010 (75 FR 31291), updating the program for current Federal PSD requirements. Additionally, the North Dakota's SIP-approved PSD program incorporates by reference the Federal program at 40 CFR 52.21. Accordingly, we are proposing to approve the North Dakota SIP as meeting the requirements of CAA 110(a)(2)(J) with respect to PSD for the 2015 ozone NAAQS.

With regard to applicable visibility protection requirements, the EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the Act. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Consequently, we find that there is no new applicable requirement relating to visibility triggered under CAA section 110(a)(2)(J) when a new NAAQS becomes effective.

Based on the above analysis, we are proposing to approve the North Dakota SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(K) requires that SIPs provide for (i) the performance of air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a NAAQS, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

The EPA's requirements for air quality modeling for criteria pollutants are found in 40 CFR part 51, appendix W, Guideline on Air Quality Models. On January 17, 2017 (82 FR 5182), the EPA revised appendix W, effective February 16, 2017. The Federal Register notice stated: “For all regulatory applications covered under the Guideline, except for transportation conformity, the changes to the appendix A preferred models and revisions to the requirements and recommendations of the Guideline must be integrated into the regulatory processes of respective reviewing authorities and followed by applicants by no later than January 17, 2018.”

(i) State's submission:

The Colorado submission refers to Colorado's Regulation 3 Part A.VIII (Technical Modeling and Monitoring Requirements) which requires that estimates of ambient air concentrations are based on applicable air quality models approved by the EPA. Further, Regulation 3 Part D, Section VI.C. requires the APCD to transmit to the Administrator of the EPA a copy of each permit application relating to a major stationary source or major modification subject to this regulation and provide notice of every action related to the consideration of such permit. The State also references the following rules and regulations which require and provide authority for air quality modeling and submission of such data to the EPA Administrator:

• Regulation 3.

• Regulation 3 Part A, Section VIII.

• Regulation 3, Part D, Section X.A.4.

• Regulation 3, Part D, Section VI.C.

• AQCC Regulation 4.

• Denver PM 10 SIP.

(ii) The EPA's analysis:

Colorado has broad authority and resources to model for all criteria pollutants. Air quality modeling is done for SIP revisions, transportation conformity, and permitting. AQCC Regulation 3 (Stationary Source Permitting and Air Pollution Emission Notice Requirements) requires stationary sources to predict the effect of air pollutants in attainment areas. Regulation 3 also details the State of Colorado's program regarding permitting as related to air quality modeling and data handling in predicting the effect of emissions of a pollutant with an established NAAQS.

Colorado Regulation 3 Part A, Section VIII, “Technical Modeling and Monitoring Requirements,” most recently approved by the EPA on January 25, 2016 (81 FR 3963), states that all estimates of ambient concentrations required under Regulation 3 shall be based on the applicable air quality models, data bases, and other requirements generally approved by the EPA and specifically approved by the APCD. Part A also requires all modeling data used to determine compliance to be appropriate given the topography, meteorology and other characteristics of the region. In previous actions, the EPA has interpreted Colorado's provisions on permit modeling to mean that the modeling is performed in accordance with appendix W of 40 CFR part 51. Because the provision requires use of EPA-approved models without setting any cutoff date for that approval, we interpret the provision to mean EPA-approved models as they are currently approved. As confirmation, Colorado's May 2018 draft modeling guidance (contained in the docket), “Colorado Modeling Guideline for Air Quality Permits” has been revised and updated to refer to the most recent version of appendix W described above. 39

The state submits data to the EPA as required under Regulation 3, Part D, Section VI.C., most recently approved by the EPA on January 25, 2016 (81 FR 3963), requiring Colorado to transmit to the EPA Administrator a copy of each permit application relating to a major stationary source or major modification subject to the regulation, and provide notice of every action related to the consideration of such permit. Additionally, the State also has the authority to submit any modeling data to the EPA upon request under the Colorado Open Records Act. 40

Based on the above information, we are proposing to approve the Colorado SIP as meeting the requirements of CAA section 110(a)(2)(K) for the 2015 ozone NAAQS.

(i) State's submission:

The North Dakota submission refers to the following rules and regulations that provide for NAAQS pollutant air quality modeling and the submission of such data to EPA:

(ii) EPA's analysis:

North Dakota's PSD program requires that estimates of ambient air concentrations are based on applicable air quality models specified in appendix W of 40 CFR part 51, and incorporates by reference  41 the provisions at 40 CFR 52.21(i)(2) requiring that modification or substitution of a model specified in appendix W must be approved by the Administrator ( see NDAC 33.1-15-14- 02.4 and NDAC 33.1-15-15-01.2). Section 7.7, Air Quality Modeling, last approved by the EPA on September 17, 2009 (77 FR 10842) of North Dakota's SIP commits the state to perform air quality modeling to predict the impact of a source on air quality, and to provide data to the EPA upon request. As a result, the SIP provides for such air quality modeling as the Administrator has prescribed.

Based on the above information, we are proposing to approve the North Dakota SIP as meeting the requirements of CAA section 110(a)(2)(K) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(L) directs SIPs to require each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing and enforcing a permit.

(i) State's submission:

The Colorado submission refers to AQCC Regulation 3, Part A, Section VI; which requires owners or operators of major stationary sources to pay the APCD annual fees, based on total emissions, necessary to recover the direct and indirect costs incurred by CDPHE in processing permit applications, issuing permits, and in conducting a compliance monitoring and enforcement program. Fees collected are used by Colorado to administer stationary source air pollution control programs.

(ii) The EPA's analysis:

The EPA-approved Regulation 3, Part A, Section VI adequately addresses requirements in CAA section 110(a)(2)(L) regarding construction ( i.e., NSR) permits. With respect to title V permits, on October 16, 2000, the EPA fully approved Colorado's part 70 title V operating permit program (65 FR 49919). The fully approved Colorado title V program and Colorado's Air Quality Control Commission Regulation 3 demonstrate that fees will be adequate to fund the title V and NSR programs, and that the State will collect fees above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). Therefore, we are proposing that Colorado has satisfied the requirements of CAA section 110(a)(2)(L) for the 2015 ozone NAAQS.

(i) State's submission:

The North Dakota submission refers to its fully approved title V operating permit program and references the NDAC for permit processing and annual fees for reviewing, approving, implementing and enforcing a permit. The state references the regulations of NDCC as its authority for fees.

• NDAC 33.1-15-23.1.

• NDCC 23.1-06-10.1.

(ii) The EPA's analysis:

NDAC 33.1-15-23.1 requires applicants for permits to construct or modify stationary sources to pay fees. With respect to title V fees, on August 16, 1999, the EPA fully approved North Dakota's part 70 title V operating permit program (64 FR 32433). Therefore, we are proposing that North Dakota has satisfied the requirements of CAA section 110(a)(2)(L) for the 2015 ozone NAAQS.

CAA section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

(i) State's submission:

Colorado refers to the following rules and regulations, which require and provide authority for public hearings, notice of hearings, public comment periods, and the consultation and coordination between state and local governments:

• APPCA 25-7-105(1)(d).

• APPCA 25-7-110.

• APPCA 25-7-128.

• AQCC Reg. 3, Part D. Section IV.A.1.

• AQCC Reg. 10.

(ii) The EPA's analysis:

The rules and regulations cited by Colorado provide for the consultation and participation by local political subdivisions affected by the SIP; therefore, we are proposing to approve the Colorado SIP as meeting the requirements of CAA section 110(a)(2)(M) for the 2015 ozone NAAQS.

(i) State's submission:

North Dakota refers to the following NDAC and NDCC rules and regulations, which require and provide authority for public hearings, notice of hearings, public comment periods; and the advisement, consultation and cooperation with other public agencies and with affected groups and industries:

• NDCC 23.1-06-03.1.

• NDCC 23.1-06-04.1.d.

• NDAC 28-32.1.

(ii) The EPA's analysis:

The rules and regulations cited by North Dakota provide for the consultation and participation by local political subdivisions affected by the SIP; therefore, we are proposing to approve the North Dakota SIP as meeting the requirements of CAA section 110(a)(2)(M) for the 2015 ozone NAAQS.

On May 2, 2019, the EPA received revisions for the APCR for the State of North Dakota. The EPA is proposing to approve one portion of the submittal, a revision to chapter 33.1-15-15, the State's PSD program. For the most part, North Dakota incorporates by reference the Federal program at 40 CFR 52.21. However, the provision that we propose to approve replaces 40 CFR 52.21(l)(1) with a specific reference to 40 CFR part 51, appendix Was it existed on July 1, 2018. The revised provision is consistent with the parallel requirement for state PSD programs in 40 CFR 51.166(l). The submittal was signed by the Governor and received a public hearing on October 10, 2018. The EPA is proposing to approve this specific provision in chapter 33.1-15-15 at this time and will act on other portions of the submitted revisions to the North Dakota APCR in a separate notice.

In this rulemaking, we are proposing approval for multiple elements of the infrastructure SIP requirements for the 2015 ozone NAAQS for Colorado and North Dakota and a proposed approval to chapter 33.1-15-15 of North Dakota's APCR, along with a proposed disapproval for one infrastructure element for North Dakota. Our proposed actions are contained in Table 1 below.

With respect to Colorado, the EPA is proposing to approve Colorado's September 17, 2018 SIP submission for the following CAA section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS: (A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M).

With respect to North Dakota, the EPA is proposing to approve North Dakota's November 6, 2018 SIP submission for the following CAA section 110(a)(2) infrastructure elements for the 2015 ozone NAAQS: (A), (B), (C), (D)(i)(I) Prong 1 Interstate transport—significant contribution, (D)(i)(I) Prong 2 Interstate transport—interference with maintenance, (D)(i)(II) Prong 3 Interstate transport—prevention of significant deterioration, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). The EPA is also proposing to disapprove (D)(i)(II) Prong 4 Interstate transport—visibility. Additionally, the EPA is proposing to approve a revision to chapter 33.1-15-15 of North Dakota's APCR.

In this document, the EPA is proposing to include regulatory text in an EPA final rule that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference North Dakota's May 2, 2019 submission of chapter 33.1-15-15, the APCR of the State of North Dakota, that updates the date of incorporation by reference of Federal rules. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 8 Office (please contact the persons identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this 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 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 CAA; and

• Does not provide the 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).

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

In the “Rules and Regulations” section of today's Federal Register , we are publishing a direct final Notice of Partial Deletion for Operable Unit (OU)1 and OU4 of the Cleburn Street Well Superfund Site without prior Notice of Intent for Partial Deletion because EPA views this as a noncontroversial revision and anticipates no adverse comment. We have explained our reasons for this partial deletion in the preamble to the direct final Notice of Partial Deletion, and those reasons are incorporated herein. If we receive no adverse comment(s) on this partial deletion action, we will not take further action on this Notice of Intent for Partial Deletion. If we receive adverse comment(s), we will withdraw the direct final Notice of Partial Deletion and it will not take effect. We will, as appropriate, address all public comments in a subsequent final Notice of Partial Deletion based on this Notice of Intent for Partial Deletion. We will not institute a second comment period on this Notice of Intent for Partial Deletion. Any parties interested in commenting must do so at this time.

For additional information, see the direct final Notice of Partial Deletion which is located in the Rules section of this Federal Register .

This Federal Register proposed rule and supporting documentation are available in a docket EPA has established for this action under Docket ID No. EPA-HQ-OLEM-2019-0085. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy at EPA/DC, WJC West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20460. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is (202) 566-0276. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744.

Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) directs EPA to develop regulations that require classes of facilities to establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. The statute further requires that the level of financial responsibility be established to protect against the level of risk the President, in his discretion, believes is appropriate, based on factors including the payment experience of the Hazardous Substance Superfund (Fund). The President's authority under this section for non-transportation-related facilities has been delegated to the EPA Administrator.

In August 2014, the Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource Watch, and Communities for a Better Environment filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit, seeking a writ of mandamus requiring issuance of CERCLA Section 108(b) financial responsibility rules for the hardrock mining industry, and for the three additional industries identified by EPA in the 2010 Advance Notice of Proposed Rulemaking (ANPRM), 1 that is, Chemical Manufacturing; Petroleum and Coal Products Manufacturing; and Electric Power Generation, Transmission, and Distribution. Following oral arguments, EPA and the petitioners submitted a Joint Motion for an Order on Consent, filed on August 31, 2015, which included a schedule for further administrative proceedings under CERCLA Section 108(b). The court order granting the motion was issued on January 29, 2016. A copy of the order can be found in the docket for this rulemaking.

In addition to requiring EPA to publish a proposed rule on hardrock mining financial requirements by December 1, 2016, the January 2016 Order requires EPA to “sign for publication in the Federal Register a determination whether EPA will issue a notice of proposed rulemaking on financial assurance requirements under Section 108(b) in the (a) chemical manufacturing industry; (b) petroleum and coal products manufacturing industry; and (c) electric power generation, transmission, and distribution industry by December 1, 2016.” EPA signed the required determination on December 1, 2016; the document was published on January 11, 2017  2 and announced EPA's intent to proceed with rulemakings for all three of the classes.

The purpose of today's action is to propose that financial responsibility requirements under CERCLA Section 108(b) at facilities in the Electric Power Generation, Transmission, and Distribution industry are not necessary, and solicit comments on this proposal. EPA has reached this conclusion based on the analyses described in Parts VI and VII of this proposal. The evidence provided in these analyses contributed to EPA's proposed finding that the degree and duration of risk posed by the Electric Power Generation, Transmission and Distribution Industry does not warrant financial responsibility requirements under CERCLA Section 108(b).

The analysis and proposed finding in this proposal are not applicable to and do not affect, limit, or restrict EPA's authority to take a response action or enforcement action under CERCLA at any facility in the Electric Power Generation, Transmission, and Distribution Industry, including any currently operating facilities or those described in this proposal and in the background documents for this proposal, and to include requirements for financial responsibility as part of such response action. The set of facts in the rulemaking record related to the individual facilities discussed in this proposed rulemaking support the Agency's proposal not to issue financial responsibility requirements under Section 108(b) for this class, but a different set of facts could demonstrate a need for a CERCLA response action at an individual site. This proposed rulemaking also does not affect the Agency's authority under other authorities that may apply to individual facilities, such as the Clean Air Act (CAA), the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), and the Toxic Substances Control Act (TSCA).

EPA is proposing to not require evidence of financial responsibility under CERCLA Section 108(b) at facilities in the Electric Power Generation, Transmission, and Distribution industry. Thus, there are no proposed regulatory provisions associated with this action.

EPA is proposing to not require evidence of financial responsibility under CERCLA Section 108(b) at facilities in the Electric Power Generation, Transmission, and Distribution industry. EPA, therefore, has not conducted a Regulatory Impact Analysis for this action.

This proposed rule is issued under the authority of Sections 101, 104, 108 and 115 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601, 9604, 9608 and 9615, and Executive Order 12580. (52 FR 2923, January 29, 1987).

CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), establishes a comprehensive environmental response and cleanup program. Generally, CERCLA authorizes EPA  3 to undertake removal or remedial actions in response to any release or threatened release into the environment of “hazardous substances” or, in some circumstances, any other “pollutant or contaminant.” As defined in CERCLA Section 101, removal actions include actions to “prevent, minimize, or mitigate damage to the public health or welfare or to the environment,” and remedial actions are “actions consistent with [a] permanent remedy[.]” Remedial and removal actions are jointly referred to as “response actions.” CERCLA Section 111 authorizes the use of the Hazardous Substance Superfund (Fund) established under title 26, United States Code, to finance response actions undertaken by EPA. In addition, CERCLA Section 106 gives EPA  4 authority to compel action by liable parties in response to a release or threatened release of a hazardous substance that may pose an “imminent and substantial endangerment” to public health or welfare or the environment.

CERCLA Section 107 imposes liability for response costs on a variety of parties, including certain past owners and operators, current owners and operators, and certain generators, arrangers, and transporters of hazardous substances. Such parties are liable for certain costs and damages, including all costs of removal or remedial action incurred by the Federal Government, so long as the costs incurred are “not inconsistent with the national contingency plan,” (the National Oil and Hazardous Substances Pollution Contingency Plan or NCP). 5 Section 107 also imposes liability for natural resource damages and health assessment costs. 6

Section 108(b) establishes an authority to require owners and operators of classes of facilities to establish and maintain evidence of financial responsibility. Section 108(b)(1) directs EPA to develop regulations requiring owners and operators of facilities to establish evidence of financial responsibility “consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances.” In turn, Section 108(b)(2) directs that the level of financial responsibility shall be initially established, and, when necessary, adjusted to protect against the level of risk that EPA in its discretion believes is appropriate based on the payment experience of the Fund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction. Section 108(b)(2) does not, however, preclude EPA from considering other factors in addition to those specifically listed. The statute prohibited promulgation of such regulations before December 1985.

In addition, Section 108(b)(1) provides for publication within three years of the date of enactment of CERCLA of a “priority notice” identifying the classes of facilities for which EPA would first develop financial responsibility requirements. It also directs that priority in the development of requirements shall be accorded to those classes of facilities, owners, and operators that present the highest level of risk of injury.

On March 11, 2008, Sierra Club, Great Basin Resource Watch, Amigos Bravos, and Idaho Conservation League filed a suit against former EPA Administrator Stephen Johnson and former Secretary of the U.S. Department of Transportation Mary E. Peters, in the U.S. District Court for the Northern District of California. Sierra Club, et al. v. Johnson, No. 08-01409 (N.D. Cal.). On February 25, 2009, that court ordered EPA to publish the Priority Notice required by CERCLA Section 108(b)(1) later that year. The 2009 Priority Notice and supporting documentation presented the Agency's conclusion that hardrock mining facilities would be the first class of facilities for which EPA would issue CERCLA Section 108(b) requirements. 7 Additionally, the 2009 Priority Notice stated EPA's view that classes of facilities outside of the hardrock mining industry may warrant the development of financial responsibility requirements. 8 The Agency committed to gather and analyze data on additional classes of facilities and consider them for possible regulation. The court later dismissed the remaining claims.

On January 6, 2010, EPA published an Advance Notice of Proposed Rulemaking (ANPRM), 9 in which the Agency identified three additional industrial sectors for the development, as necessary, of proposed Section 108(b) regulation. To develop the list of additional classes for the 2010 ANPRM, EPA used information from the CERCLA National Priorities List (NPL) and analyzed data from the Resource Conservation and Recovery Act (RCRA) Biennial Report (BR) and the Toxics Release Inventory (TRI). As was discussed in the ANPRM, these sources were chosen because “they are well-established, reliable sources of information on facilities associated with hazardous substances, and were readily available to the Agency.”  10 As an additional factor for consideration, EPA looked at certain known cases where impacts to groundwater or surface water had been documented, as well as recent catastrophic releases, such as the 2008 release of coal ash from the Tennessee Valley Authority's (TVA) Kingston Plant. The result of this analysis is explained in the 2010 ANPRM in detail, with the conclusion that three industries—the Chemical Manufacturing industry (North American Industry Classification System (NAICS) 325), the Petroleum and Coal Products Manufacturing industry (NAICS 324), and the Electric Power Generation, Transmission, and Distribution industry (NAICS 2211)—would be considered for financial responsibility requirements under § 108(b).

EPA specifically requested public comment in the 2010 ANPRM on whether to propose a regulation under CERCLA Section 108(b) for each of the three industries, or any class or classes within those industries, including information demonstrating why such financial responsibility requirements would or would not be appropriate for those particular classes. In addition, the Agency requested information related to the industry categories discussed in the ANPRM, including data on facility operations, information on past and expected future environmental response actions, use of financial responsibility mechanisms by the industry categories, existing financial responsibility requirements, and other information the Agency might consider in setting financial responsibility levels. Finally, EPA requested information from the insurance and the financial sectors related to instrument availability and implementation, and potential instrument conditions. 11 Comments received on the ANPRM are summarized in the Additional Classes 2017 Notice of Intent to Proceed with Rulemakings, section III.B.4 below.

Dissatisfied with the pace of EPA's progress, in August 2014, the Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource Watch, and Communities for a Better Environment filed a new lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit, seeking a writ of mandamus requiring issuance of CERCLA Section 108(b) financial assurance rules for the hardrock mining industry and for three other industries: Chemical manufacturing; petroleum and coal products manufacturing; and electric power generation, transmission, and distribution. Thirteen companies and organizations representing business interests in the hardrock mining and other sectors sought to intervene in the case.

Following oral argument, the court issued an Order in May 2015 requiring the parties to submit, among other things, supplemental submissions addressing a schedule for further administrative proceedings under CERCLA Section 108(b). The Order further encouraged the parties to confer regarding a schedule and, if possible, to submit a jointly agreed upon proposal. Petitioners and EPA were able to reach agreement on a schedule. The parties requested an Order from the court with a schedule calling for the Agency to sign a proposed rule for the hardrock mining industry by December 1, 2016, and a final rule by December 1, 2017. The joint motion also included a requested schedule for the additional industry classes, which called for EPA to sign by December 1, 2016, a determination on whether EPA will issue a notice of proposed rulemaking for classes of facilities in any or all of the other industries, and a signature schedule for proposed and final rules for the additional industry classes as follows:

While the joint motion identified the other industries as being the Chemical Manufacturing industry, the Petroleum and Coal Products Manufacturing industry, and the Electric Power Generation, Transmission and Distribution industry, and set a rulemaking schedule, it did not indicate which industry would be the first, second or third. The Joint Motion specified that it did not alter the Agency's discretion as provided by CERCLA and administrative law. 13

On January 29, 2016, the court granted the joint motion and issued an Order that mirrored the submitted schedule in substance. The Order did not mandate any specific outcome of the rulemakings. 14 The court Order can be found in the docket for this rulemaking. The signing of this proposed rule by July 2, 2019, will satisfy one component of the court Order. EPA has selected the Electric Power Generation, Transmission and Distribution industry as the first additional industry to meet the schedule laid out in the Order.

Consistent with the January 2016 court Order, EPA signed on December 1, 2016, a determination regarding rulemakings for the additional classes—a Notice of Intent to Proceed with Rulemakings for all three of the classes. The document was published in the Federal Register on January 11, 2017. 15

The Notice of Intent to Proceed with Rulemakings formally announced EPA's intention to move forward with the regulatory process and publish a notice of proposed rulemaking for classes of facilities within the three industries identified in the 2010 ANPRM. The announcement in the Notice of Intent to Proceed with Rulemakings was not a determination that requirements were necessary for any or all of the classes of facilities within the three industries, or that EPA would propose such requirements. In addition, the document gave an overview of some of the comments received on the 2010 ANPRM and initial responses to those comments. The comments on the ANPRM which specifically addressed the need for CERCLA Section 108(b) regulation for the three additional classes fell into four categories: (1) Other laws that the industry complies with that obviate the need for CERCLA Section 108(b) regulation; (2) the sources of data EPA used to select the industries; (3) past versus current practices within each industry; and (4) the overall need for financial responsibility for each industry. In discussing the ANPRM comments in the 2017 Notice of Intent to Proceed with Rulemakings, the Agency stated its intent to use other, more industry-specific and more current sources of data to identify risk, and to consider site factors that reduce risks, including those that result from compliance with other regulatory requirements, and develop a regulatory proposal based on the record EPA would develop for each rulemaking.

At the time of the 2017 Notice of Intent to Proceed with Rulemakings, EPA had not identified sufficient evidence to determine that the rulemaking process was not warranted, nor had EPA identified sufficient evidence to establish CERCLA Section 108(b) requirements. The document described a process to gather and analyze additional information to support the Agency's ultimate decision, including further evaluation of the classes of facilities within the three industry sectors. The Notice of Intent to Proceed with Rulemakings stated that EPA would decide whether proposal of requirements was necessary and, accordingly propose appropriate requirements or propose not to impose requirements.

CERCLA Section 108(b) provides general instructions on how to determine what financial responsibility requirements to impose for a particular class of facility. Section 108(b)(1) directs EPA to develop regulations requiring owners and operators of facilities to establish evidence of financial responsibility “consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances.” Section 108(b)(2) directs that the “level of financial responsibility shall be initially established and, when necessary, adjusted to protect against the level of risk” that EPA “believes is appropriate based on the payment experience of the Fund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction.” Read together, the statutory language on determining the degree and duration of risk and on setting the level of financial responsibility confers a significant amount of discretion on EPA.

Section 108(b)(1) directs EPA to evaluate risk from a selected class of facilities, but it does not suggest that a precise calculation of risk is either necessary or feasible. Although the risk associated with a particular site can be ascertained only once a response action is required, any financial responsibility requirements imposed under Section 108(b) would be imposed before any such response action was identified. The statute thus necessarily confers on EPA wide latitude to determine, in a Section 108(b) rulemaking proceeding, what degree and duration of risk are presented by the identified class.

Section 108(b)(2) in turn directs that EPA establish the level of financial responsibility that EPA in its discretion believes is appropriate to protect against the risk. This statutory direction does not specify a methodology for the evaluation. Rather, this decision is committed to the discretion of the EPA Administrator. While the statute provides a list of information sources on which EPA is to base its decision—the payment experience of the Superfund, commercial insurers, courts settlements and judgments, and voluntary claims satisfaction—the statute does not indicate that this list of factors is exclusive, nor does it specify how the information from these sources is to be used, such as by indicating how these categories are to be weighted relative to one another.

For the electric power industry, EPA has investigated the payment history of the Fund, and enforcement settlements and judgments, to evaluate, in the context of this CERCLA Section 108(b) rulemaking, the risk from facilities that would be subject to CERCLA financial responsibility requirements. The statute also authorizes EPA to consider the existence of Federal and state regulatory requirements, including any financial responsibility requirements. Section 108(b)(1) directs EPA to promulgate financial responsibility requirements “in addition to those under subtitle C of the Solid Waste Disposal Act and other Federal law.” According to the 1980 Senate Report on legislation that was later enacted as CERCLA, Congress considered it appropriate for EPA to examine those additional requirements when evaluating the degree and duration of risk under what was later enacted as CERCLA Section 108(b):

While the Senate Report mentions RCRA Section 3004(6) specifically, it is consistent with Congressional intent for EPA to consider other potentially duplicative federal financial responsibility requirements when examining the “degree and duration of risk” in the context of CERCLA § 108(b) to determine whether and what financial responsibility requirements are appropriate. It is also consistent with Congressional intent for EPA to consider state laws before imposing additional Federal financial responsibility requirements on facilities.

Consideration of state laws before developing financial responsibility regulations is consistent with CERCLA Section 114(d), which prevents states from imposing financial responsibility requirements for liability for releases of the same hazardous substances after a facility is regulated under Section 108 of CERCLA. Just as Congress clearly intended to prevent states from imposing duplicative financial assurance requirements after EPA had acted to impose such requirements under Section 108, it is reasonable to also conclude that Congress did not mean for EPA to disrupt existing state programs that are successfully regulating industrial operations to minimize risk, including the risk of taxpayer liability for response actions under CERCLA, and that specifically include appropriate financial assurance requirements under state law. Reviews of both state programs and other federal programs help to identify whether and at what level there is current risk that is appropriate to address under CERCLA Section 108.

EPA also believes that, when evaluating whether and at what level it is appropriate to require evidence of financial responsibility, EPA should examine information on electric power generation, transmission and distribution facilities operating under modern conditions, i.e., the type of facilities to which financial responsibility regulations would apply. These modern conditions include state and federal regulatory requirements and financial responsibility requirements that currently apply to operating facilities. This reading of Section 108(b) is consistent with statements in the legislative history of the statute. The 1980 Senate Report states that the legislative language that became Section 108(b) “requires those engaged in businesses involving hazardous substances to maintain evidence of financial responsibility commensurate with the risk which they present.”  17

This statutory interpretation is reflected in this proposal. Any financial responsibility requirements imposed under Section 108(b) would apply to currently operating facilities. EPA thus sought to examine the extent to which hazardous substance management at currently operating electric power generation, transmission and distribution facilities as a class continues to present risk. Moreover, the statutory direction to identify requirements consistent with identified risks guides EPA's interpretation that imposition of financial responsibility requirements under Section 108(b) would not be necessary for currently operating facilities that present minimal current risk. The interpretation in this proposal does not extend to any site-specific determinations of risk made in the context of individual CERCLA site responses. Those decisions will continue to be made in accordance with preexisting procedures.

EPA thus examined records of releases of hazardous substances from facilities operating under a current regulatory framework and data on the actions taken and expenditures incurred in response to such releases. The data collected do not reflect historical practices, many of which would be illegal under current environmental laws and regulations. Instead, EPA has considered current federal and state regulation of hazardous substance production, transportation, treatment, storage, or disposal applicable to facilities in the electric power industry.

Based on the statutory interpretation described above, EPA developed an analytical approach to determine whether the current risk under a modern regulatory framework within the Electric Power Generation, Transmission and Distribution industry rises to the level that warrants imposition of financial responsibility requirements under CERCLA Section 108(b). Specifically, EPA designed the analytical approach to determine the need for financial responsibility for this industry based on the degree and duration of risk associated with the industry's production, transportation, treatment, storage, or disposal of hazardous substances. The approach, described in detail below, looks at risks by examining records of releases of hazardous substances from facilities in the industry in combination with the payment history of the Fund, and enforcement settlements and judgments. To enable EPA to base its decision on risk posed by facilities operating under modern conditions, i.e., the types of facilities to which financial responsibility requirements would apply, EPA developed an approach to identify and consider relevant state and Federal regulatory requirements and financial responsibility requirements that currently apply to operating facilities, as well as voluntary protective practices.

EPA sought to determine the level of risk at current Electric Power Generation, Transmission and Distribution operations. Relevant to this decision are requirements of existing regulatory programs and voluntary practices, including existing financial responsibility requirements, which can reduce costs to the taxpayer; EPA's experience with clean-ups in the Electric Power Generation, Transmission and Distribution industry; and enforcement actions, which may reduce the need for federally-financed response action at facilities in the Electric Power Generation, Transmission and Distribution industry.

As part of scoping the Electric Power Generation, Transmission and Distribution industry for this proposal, EPA sought to understand general characteristics of the industry that may be relevant to financial responsibility under Section 108(b). To do this EPA compiled industry features, including the types of activities undertaken and wastes handled or produced. Additionally, EPA looked at the financial condition of the industry to assess the ability of facilities in this class to pay for any environmental obligations they may incur. Discussion of these aspects of the industry is included in Section VI of this proposal.

Section VII.A. describes EPA's evaluation of cleanup cases at facilities in the Electric Power Generation, Transmission and Distribution industry. So-called “cleanup cases” are sites in the Electric Power Generation, Transmission and Distribution industry where releases and cleanup actions occurred. To perform this evaluation EPA developed an analytic approach that considered cleanup cases to identify risk at currently operating facilities and where taxpayer funds were expended for response action. EPA first examined each site to determine the nature and timing of release. EPA used this information to determine if releases occurred under current regulations. As an initial screen, releases that occurred prior to 1980 were deemed to be legacy releases that occurred prior to the advent of the modern environmental regulatory framework and were therefore screened out of our analysis. Once EPA identified those sites with more recent releases occurring under a modern environmental regulatory framework, EPA then focused on those response actions that were paid for by the taxpayer by looking at those sites with Fund-financed cleanup activity.

As described in Section VII.B., to understand the modern regulatory framework applicable to currently operating facilities within the Electric Power Generation, Transmission and Distribution industry, EPA compiled applicable Federal and state regulations. Specifically, EPA looked to regulations that address the types of releases identified in the cleanup cases. This review also considered industry voluntary programs that could reduce risk of releases. EPA also identified financial responsibility regulations that apply to facilities in the Electric Power Generation, Transmission and Distribution industry, Section VII.C., and compliance and enforcement history for the relevant regulations, Section VII.D.

In considering how to structure its analysis and what data sources to examine, EPA looked at prior analysis done for selection of industry classes in the 2010 ANPRM and public comments responding to EPA's approach. In the public comment period for the ANPRM, EPA received a total of 67 comments from 30 commenters on the Chemical Manufacturing industry, Petroleum and Coal Products Manufacturing industry, and the Electric Power Generation, Transmission, and Distribution industry. In addition, EPA received five comments to the Hardrock Mining Proposed Rule related to the additional classes of facilities.

A large portion of the comments EPA received on the ANPRM were related to the Electric Power Generation, Transmission and Distribution industry. Commenters noted their view that this industry is distinct from other industries because it does not have a history of failing to cover remediation costs. Further, commenters stated that facilities in this industry are subject to multiple Federal environmental statutes and regulations and thus EPA should not duplicate existing financial assurance. In addition, commenters stated that EPA should focus on large electric power generation facilities that produce and release hazardous substances, not transmission or distribution facilities; wind, solar, nuclear, or hydro-electric plants; or natural gas-fired and oil-fired electric generation facilities. Lastly, some commenters believe that EPA placed too much emphasis on Toxics Release Inventory (TRI) data and RCRA Biennial Report (BR) data and expressed their opinions that these data sources are not risk based.

In its 2017 Notice of Intent to Proceed with Rulemakings  18 EPA acknowledged limitations on information that can be gained from TRI and BR data and announced its intention to use industry-specific and current sources of data to identify risk for the purposes of the rulemakings. In the analysis conducted to assess risk in the Electric Power Generation, Transmission and Distribution industry for this action, EPA chose not to rely on TRI and BR data. While the Agency found those data sources appropriate for identifying classes of facilities to examine further at the time of the 2010 ANPRM, it did not find them valuable for assessing current risk in the industry or the need for a response action.

For this proposal and the associated analyses, EPA reviewed facilities classified under the North American Industry Classification System (NAICS) code 2211. Most recently available census data lists the size of the industry at 10,330 establishments nationally. 19 The Electric Power Generation, Transmission and Distribution (NAICS 2211) industry is defined as: Facilities primarily engaged in generating, transmitting, and distributing electric power. Establishments  20 in this industry group may perform one or more of the following activities: (1) Generate electric energy; (2) operate transmission systems that convey the electricity from the generation facility to the distribution system; and (3) operate distribution systems that convey electric power received from the generation facility or the transmission system to the final consumer.

Operational and decommissioning practices in industrial sectors and their associated firms can ultimately affect the ability of individual firms to responsibly minimize their impact on human health and the environment. To consider the potential for releases as part of its decision making, EPA prepared a high-level review  21 of industry practices and the environmental profile of the Electric Power Generation, Transmission and Distribution industry, which includes a summary of relevant operational and decommissioning materials and wastes.

Electric generating plants convert mechanical, chemical, and/or fission energy into electric energy. Within this population of electric generating plants, there are different types of processes employed to produce electricity ( e.g., coal-fired power plants, wind turbines). Electric power transmission is the bulk transfer of electrical energy between the point of generation and multiple substations near a populated area or load center. A distribution substation performs multiple functions, such as stepping down and stabilizing voltage going into distribution lines, splitting and routing distribution power in multiple directions, and disconnecting the transmission grid from the substation when necessary.

Operation of any power plant requires use of a variety of nonhazardous materials, including paper, cardboard, wood, aluminum, containers, packaging materials, office waste, food, municipal trash, and wastes from equipment assembly and maintenance crews. Potentially hazardous materials are also frequently used. These materials can include sandblast media, fuels, paints, spent vehicle and equipment fluids ( e.g., lubricating oils, hydraulic fluids, battery electrolytes, glycol coolants), among others. Hazardous materials may include, but are not limited to, asbestos or mercury containing materials, compressed gases used for welding and cutting, dielectric fluids, boiler bottom ash, and oils. Process fluids can be either hazardous or non-hazardous, and can include oily water, spent solvents, chemical cleaning rinses, cooling water, wash and makeup water, sump and floor discharges, oily water separator fluids, boiler blowdown, and water from surface impoundments. Other materials beyond those listed here may be used in the operation of power plants.

The types of hazardous substances that have been released from facilities in the Electric Power Generation, Transmission and Distribution industry include hydrogen fluoride; vanadium, zinc, copper, and lead compounds; ammonia; and arsenic, cobalt, barium, cadmium, and selenium compounds. Coal combustion residuals frequently contain arsenic, selenium, mercury, and other toxic metals. Other substances beyond those listed here may also have been released from facilities in the industry.

As detailed in the 2010 ANPRM, most environmental impacts of electric utilities relate to the fuel sources used to generate electric power. For example, burning coal at coal-fired power plants generates ash that contains contaminants like mercury, cadmium and arsenic. Without proper management, contaminants present in coal ash can pollute waterways, groundwater, and drinking water. The need for Federal action to help ensure protective coal ash disposal has been further highlighted by large spills such as those at the TVA Kingston Plant and Duke Energy's Dan River Steam Station, 22 which caused widespread environmental and economic damage to nearby waterways and properties.

Electricity delivery can also affect the environment in several ways. High voltage power switches, inverters, converters, controller devices and other power electronics contain lead, brominated fire retardants, and cadmium in their printed circuit boards; these circuit boards must be managed properly to avoid posing risk to human health or the environment. Electrical substations and urban manhole facilities require periodic cleaning, which may yield hazardous waste. Additionally, insulating materials such as asbestos and polychlorinated biphenyls (PCBs) must also be managed properly.

Industry practices in certain subsectors, the Fossil Fuel Generation (221112), Transmission (221121) and Distribution (221122), of the Electric Power Generation, Transmission and Distribution industry use more hazardous substances and/or generate larger volumes of hazardous waste. Several generation subsectors use and generate lower amounts of hazardous substances or wastes, including Hydroelectric (221111), Nuclear (221113), Solar (221114), Wind (221115), Geothermal (221116) and Tidal (221118). Further information on industry practices is provided in EPA's document “Electrical Power Generation, Transmission and Distribution Industry Practices and Environmental Characterization”  23 available in the docket for this rulemaking.

Facilities in the electric power generation, transmission and distribution industry are subject to a wide range of environmental regulation and enforcement oversight as discussed in Sections VII.B. and VII.D. below.

Economic trends and financial health in industrial sectors and their associated firms can ultimately affect the ability of individual firms to responsibly address their environmental liabilities. Circumstances where firms face financial stress can potentially contribute to the abandonment of facilities and the creation of orphan wastes sites requiring cleanup. To consider the potential for firms to default on their financial obligations EPA prepared a high-level economic profile of the Electric Power Generation, Transmission and Distribution industry, which includes a summary of relevant financial metrics, market consolidation and diversification trends, industry default risks, and accounting standards for environmental liabilities of entities operating within this industry. This analysis, summarized in this section, looked at the industry as a whole and additionally focused on certain subsectors that might be most pertinent to evaluate for CERCLA 108(b) requirements, including facilities subject to the 2015 Disposal of Coal Combustion Residuals from Electric Utilities Final Rule (2015 CCR Rule). 24 The full analysis is found in the background document for this section available in the docket for this rulemaking. 25

According to the U.S. Census Survey of Business Owners, firms under NAICS 2211 generated $430 billion in total value of sales, shipments, receipts, revenue, or business done in 2012. Of this $430 billion, 72 percent came from Electric Power Transmission, Control, and Distribution, while Electric Power Generation accounted for the remaining 28 percent. Within Electric Power Generation, fossil fuel power generation accounted for the largest portion of these values, at 68 percent.

The market structures under which Electric Power Generation, Transmission and Distribution industry firms operate are varied and unique to this industry. Firms, their owners/shareholders, and taxpayers may experience different risk profiles based on the companies' ownership (privately or publicly held), as well as the nature of the market in which they operate (regulated or deregulated). In addition, the Federal Government owns nine power agencies, accounting for seven percent of net generation and eight percent of transmission. These federally-owned utilities present an extremely low risk of default on environmental liabilities. Publicly-owned utilities also present a low risk of bankruptcy due to detailed financial reporting requirements and government oversight. Publicly-owned utilities may also have access to lower-cost forms of financing, such as tax-free bonds and local low-interest loans. More information on the numbers of publicly-owned utilities and investor-owned utilities, and their relative percentages across the industry, is provided in the background document available in the docket for this rulemaking. 26

These utilities can operate in either regulated or deregulated markets, which also come with financial risk/stability tradeoffs. Regulated markets are characterized by vertically integrated monopolies that own and operate all infrastructure and essential components involved in the delivery of electricity to their customers. Regulated firms are given reasonable opportunity to recover necessary and prudent costs in their rates through rate regulation. This generally includes costs necessary to address environmental liabilities, which are ultimately covered by the rate-payers. On the other hand, deregulated, or merchant, markets allow for competition as generation plants sell wholesale electricity to retail suppliers, who set prices, making the performance of environmental cleanups more susceptible to market forces and a firm's ability to pay.

EPA assessed financial ratios, including cash flow-solvency, profitability, efficiency, and debt risk, for companies in the Electric Power Generation, Transmission and Distribution industry to examine trends over time and provide a deeper assessment of the industry's and companies' financial health. Generally, EPA research finds that the Electric Power Generation, Transmission, and Distribution industry remains financially stable. The industry is characterized by diversified fuel sources and vertical integration, reducing firms' dependency on any one subsector and strengthening long-term financial stability. Mergers and acquisitions in recent years have also enhanced financial stability in the long run by further diversifying large firms across subsectors. According to the 2018 U.S. Cost of Capital Valuation Handbook, in recent years the industry experienced less risk and volatility than the overall market.

Firms in the industry overall remain profitable and able to cover short-term debt. The data, however, also indicate that larger firms in the industry tend to be more highly leveraged. For some firms, long-term liabilities have risen relative to net worth ratios, resulting in a higher risk of default. While default risk remains relatively low industry-wide, the data suggest two key risk factors that may threaten financial stability for some firms: High dependency on coal and nuclear generation, and rapid market consolidation through mergers and acquisition.

For example, some notable bankruptcies in recent years stemmed from a high dependency on coal and nuclear power generation. Firms more solely invested in coal or nuclear generation faced more difficulty, due to their lack of diversification into alternative fuel sources and lower profit margins. 27 Nevertheless, the occurrence of bankruptcies in this industry has historically been far lower than that of many other industries, and such occurrences remain relatively infrequent. Further evidence suggests that due in part to factors such as the significant amount of fixed infrastructure and consumer dependence on electricity, energy sector firms that default tend to emerge from bankruptcy and continue to operate rather than fully close. Such bankruptcies tend to proceed under Chapter 11 relief, for purposes of debt restructuring. Moreover, in most of these bankruptcies the debtors have retained their responsibility for environmental liabilities. Additionally, if the units are continuing to operate, the obligation to comply with applicable environmental regulations, including the 2015 CCR final rule and any final amendments, will still be required. Further discussion on bankruptcy experience of this industry, including evaluation of individual bankruptcy cases, can be found in the background document to this section found in the docket. 28

Close examination of market structures and typical bankruptcy restructuring that exist within the Electric Power Generation, Transmission and Distribution industry suggest that the industry as a whole should retain the capacity and fiduciary responsibility to pay the costs of addressing their environmental obligations. In this industry, publicly-owned utilities subject to rate-setting regulations, as well as federally-owned utilities, are less likely to default on liabilities than in other industries. For investor-owned utilities and those that operate in deregulated markets, bankruptcy code provisions and legal precedents can provide other protections against the discharge of environmental liabilities in bankruptcy.

As described in the Approach to Developing the Proposed Rule, Section V above, to evaluate the need for financial responsibility regulations in the Electric Power Generation, Transmission and Distribution industry, EPA sought examples of pollution that occurred under a modern regulatory framework and that required a taxpayer-funded CERCLA cleanup. In its evaluation, EPA focused first on identifying response actions at Superfund National Priority List (NPL) sites and sites using the Superfund Alternative Approach (SAA), 29 as those are generally larger cleanups both in terms of amounts of contaminants removed and costs to carry out these cleanups. EPA also looked at Superfund removals at non-NPL sites. Beyond these sites in the Federal Superfund program, EPA included proven CCR damage cases  30 in its evaluation, given the prevalence and significance of the CCR damage cases reviewed for the 2010 ANPRM. Specifically, in that ANPRM, EPA assessed documented evidence of proven damage due to CCRs in 17 cases of groundwater contamination and 10 cases of surface water contamination. EPA noted an additional 40 cases of potential CCR-related groundwater or surface water contamination.

To identify the relevant cleanup cases, EPA included NPL sites, sites using the SAA, and non-NPL sites identified in EPA's Superfund Enterprise Management System (SEMS) database. EPA also included CCR damage cases identified as part of the 2015 CCR Rule. 31 EPA collected information on the timing and nature of releases or threatened releases at these sites. Specifically, EPA sought to identify, as applicable, facility operation end dates, release dates, sources of contamination, NPL proposal dates, contaminated media, type of contaminant, cleanup lead, and information on Superfund expenditures at the site. For this collection, EPA relied on information previously collected as part of the ANPRM, information available in Superfund site documents ( e.g. NPL listing narratives, Records of Decision, Action Memos, Five-Year Reviews), and information in SEMS as of March 2018, as well as data for proven CCR damage cases, and associated site summaries developed for the 2015 CCR Rule. 32 The cleanup case identification and site information collection processes are described in greater detail in the relevant background documents. 33

After compiling information about the risks and history of each site, EPA sought to identify instances where releases occurred under a modern regulatory framework and those releases that resulted in Fund-financed response actions. To do so, EPA's methodology applied sequenced screens to the identified sites. EPA first sought to screen out any NPL sites or sites using the SAA where the contaminant release or cleanup activity occurred before 1980. EPA chose 1980 as a cutoff point to initially screen out legacy issues because it was the year that CERCLA was enacted, as well as the date of the initial regulations under RCRA Subtitle C governing the generation, treatment, storage, and disposal of hazardous waste. EPA chose to give these significant RCRA and CERCLA milestones greatest consideration due to the large number of issues of waste management, land disposal, and soil contamination identified in the review of the NPL and SAA cases. EPA believes the 1980 cutoff point to be a conservative screen ( i.e., retains more sites in the analysis) in that only the initial RCRA regulations were in place in 1980 and they were refined, expanded and enhanced several times over the next decades. Moreover, the Agency's enforcement authorities expanded in the 1980s as the RCRA program matured. Notably, the passage in 1984 of Hazardous and Solid Waste Amendments (HSWA) resulted in many regulatory changes and enhanced enforcement mechanisms.

Next, EPA sought to remove sites where significant Fund expenditures had not occurred, because response actions that were paid for by private parties do not support the need for CERCLA Section 108(b) financial responsibility regulations. Using the “Action Lead” field in SEMS associated with each site, EPA screened out the Potentially Responsible Party (PRP) lead sites. This left only the Mixed Lead Construction or Government Performed Construction sites in the analysis, consistent with EPA's assessment that at PRP Performed Construction sites, responsible parties retain responsibility for the majority of costs. Therefore, PRP Performed Construction sites do not represent significant expenses to the Superfund.

EPA then reviewed the remaining sites ( i.e., those with both release dates of 1980 or later and Mixed Lead Construction or Government Performed Construction designation in SEMS) individually in greater detail. Specifically, EPA considered the site history and each of the contamination sources at the site in the context of the regulations that would be applicable to that facility today. A particularly relevant regulation is the 2015 CCR Rule, which added significant new requirements to the coal-fired electric utility plants that dispose of CCR in landfills and surface impoundments. The promulgation of the 2015 CCR Rule effectively establishes the introduction of the modern regulatory framework for coal-fired electric utilities. More information on the regulations EPA considered is available in Section VII.B. below.

Findings from EPA's analysis of the cleanup cases are discussed below, with more detailed information available in the “Identification and Evaluation of National Priority List (NPL) Sites, Sites Using the Superfund Alternative Approach (SAA), and Coal Combustion Residual (CCR) Cleanup Cases in the Electric Power Generation, Transmission, and Distribution Industry” background document and the “Identification and Evaluation of CERCLA 108(b) Electric Power Generation, Transmission, and Distribution Industry non-National Priority List (NPL) Removal Sites” background document in the docket for this rulemaking. 34 The background documents provide the list of sites identified as well as the information considered in the screening and review process. Also provided is the list of sites remaining at each stage of the analysis, as well as the Agency's rationale for each site's subsequent designation.

Using the data sources described above for the Electric Power Generation, Transmission, and Distribution industry, EPA identified 4 NPL sites and 1 site using the SAA, as well as 24 non-NPL CERCLA removal action sites, 35 and an additional 27 proven CCR-related damage cases  36 not tracked within Superfund data systems, to evaluate according to the methodology described above. As described further below, none of the NPL sites, sites using the SAA, or CCR damage cases were ultimately considered incidents that occurred under a modern regulatory framework nor were they incidents where taxpayer funds were relied upon. For the removal sites, 2 of the 24 cases showed releases of hazardous substances under a modern regulatory framework and required taxpayer expenditures, as described below.

The four NPL sites evaluated include two coal-fired power generation plants with serious CCR contamination, as well as one hydro-electric facility with PCB contamination and one nuclear power generator with radiation contamination. The one site using the SAA is a steam plant that generates electric power from oil-fired burners and natural gas turbines.

For the four NPL sites, either the dates of contaminant release were prior to 1980, or the power plants were Federal facilities owned and operated by the Federal Government. In the case of the one site using the SAA, no further remedial action is called for and costs for removal and cleanup were covered by the PRP under its CERCLA agreement with EPA. As a result, EPA did not undertake a more detailed review of these sites, as summarized in Table 1 below.

Given the small number of NPL and SAA cleanup cases and the consideration of CCR damage cases for the 2010 ANPRM, EPA chose to evaluate the potential risk from CCR damage cases. EPA evaluated the 27 proven CCR damage cases identified for the 2015 CCR Rule. Following the above methodology for identifying modern risk, 17 of the cases were screened from further consideration because the source of contamination was determined to have occurred prior to 1980, or because the site was designated as a responsible party lead cleanup. Ten remaining cases were determined to have occurred after 1980. When these 10 remaining cases were assessed against today's modern regulatory framework, the releases were all found to have occurred prior to promulgation of the 2015 CCR Rule  37 and therefore they were screened from further consideration. As described in more detail in the Role of Federal and State Programs section below, the 2015 CCR Rule was specifically designed to contain requirements that address the risks from coal combustion residue disposal—leaking of contaminants into groundwater, blowing of contaminants into the air as dust, and the catastrophic failure of coal ash surface impoundments, i.e., the sources of contamination identified in the CCR damage cases. Therefore, although there are examples of significant releases in more recent years (for example, as recent as 2014 in the case of the Duke Energy breach at Dan River, and 2008 in the case of a catastrophic dike failure at the TVA Kingston Plant), those cases still occurred prior to the advent of the new regulatory standards intended to prevent and remedy these types of incidents. Although not all provisions of the 2015 CCR Rule have been fully implemented, EPA believes the requirements in place and those to be implemented in the coming years sufficiently reduce the risk level at coal-fired power plants. The 2015 CCR Rule is described further in Section VII.B.

The summary results of the analysis of proven CCR damage cases are presented in Table 2 below.

Additionally, EPA chose to look at the major removal cases found in the SEMS database to supplement this analysis. For this sector, EPA identified 24 removal sites which were evaluated using the analytic methodology. Using the methodology, EPA screened out 19 sites because the environmental releases occurred before 1980 or PRPs led the response action. To assess the five sites that remained after those screens, EPA first conducted a detailed review to compare the environmental issues at the sites to the regulations applicable today. Based on the detailed review, EPA concluded that the environmental releases at three of the five remaining removal sites were caused by a one-time incident ( e.g., transformer fire, equipment failure), resulting in release of PCB transformer oil. Although not designated PRP-lead actions, according to EPA's record, PRPs financed and performed the response actions to the satisfaction of EPA at these sites, and no Fund expenditures occurred.

Regarding the other two removal sites that remained after the screens, EPA's detailed review indicated that both cases involved long-term PCB contamination resulting from inappropriate handling and storage of PCB waste. However, notwithstanding a government-lead designation in SEMS, neither of these sites required significant taxpayer expenditure. EPA considered all available history at each site to determine the level of Fund expenditure. According to EPA's SEMS expenditure data for English Station power plant in New Haven, Connecticut (an abandoned coal fired power plant, which operated from 1914 through 1992), the Fund incurred an estimated cost of $17,000, while the PRP signed a Partial Consent Order  38 with the state of Connecticut to spend $30 million to address site contamination potentially dating back to 1914. Similarly, EPA incurred an estimated cost of $374,000 for response actions at Commonwealth Utilities Corporation (CUC) site in the Northern Mariana Islands (a currently operating facility) after the territory-owned company informed EPA that it lacked the technical capacity to address the PCB contamination issues at the site. In this case, EPA did not pursue cost recovery due, in part, to the PRP's inability to pay. The Fund expenditures for response action at these two sites were not deemed significant for purposes of this analysis. More detailed information can be found in the background document and supporting spreadsheets available in the docket for this rulemaking. The background document includes the list of sites identified for analysis, as well as the data and information considered in the screening and review process. The summary results of the analysis are presented in Table 3 below.

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

If you submit a comment, please include the docket number for this NPRM (Docket No. FMCSA-2018-0332), indicate the specific section of this document to which each section 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-2018-0332, 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 change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.

Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the general public by the submitter. Under the Freedom of Information Act, CBI is exempt from public disclosure. If you have CBI that is relevant or responsive to this NPRM, 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 NPRM. Submissions containing CBI should be sent to Brian Dahlin, Chief, Regulatory Analysis Division, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any commentary that FMCSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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-2018-0332, 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.

Under the Fixing America's Surface Transportation Act, Public Law, 114-94 (FAST Act), FMCSA is required to publish an advance notice of proposed rulemaking (ANPRM) or conduct a negotiated rulemaking “if a proposed rule is likely to lead to the promulgation of a major rule” (49 U.S.C. 31136(g)(1)). As this proposed rule is not likely to lead to the promulgation of a major rule, the Agency is not required to issue an ANPRM or to proceed with a negotiated rulemaking.

To promote further flexibility in the CDL issuance processes, FMCSA proposes to allow driver applicants to take the CDL knowledge tests required by 49 CFR 383.25(a)(3), 383.25(a)(5), and 383.95(c)(1) and (4), in any State (the testing State), when that State is other than the applicant's State of domicile. Under this proposed rule, the testing State would transmit the driver applicant's knowledge testing results to the State of domicile. The NPRM applies to the general knowledge test for the CLP, as well as specialized knowledge tests for the passenger (P), school bus (S), tank vehicle (N), double/triple trailer (T), and hazardous materials (H) endorsements, therefore the testing state may be transmitting more than one test result. The State of domicile would be required to accept the results of the knowledge test(s) in fulfillment of the applicant's testing requirements, as long as all other requirements under 49 CFR 383.71 have been met. The purpose of the proposal is to facilitate a driver applicant's ability to take the knowledge test(s) outside the State of domicile, while maintaining the “one driver/one license/one record” requirement described below. It would also make the knowledge testing process more consistent with the skills testing process, which may already be conducted outside the State of domicile, with the test results required to be sent back to the domicile State (49 CFR 383.79(a)) and the license issued by the domicile State. Because this proposal would not change the standards for administration of the knowledge tests, the Agency concludes it would have no detrimental impact on safety.

FMCSA evaluated the potential for the proposed rule to result in incremental costs and benefits. The Agency determined that the proposed rule is not a significant regulatory action as defined in Executive Order (E.O.) 12866 or within the meaning of DOT regulatory policies and procedures. The proposed rule may result in costs for States to adapt procedures or information systems to accept out-of-State knowledge test results. Increasing the flexibility of driver applicants to take a knowledge test in any State may reduce driver costs in terms of time and travel expenditures associated with returning to their State of domicile. Improving access to training programs that best suit drivers' needs may also increase the number of driver applicants and positively impact both the supply and skill level of CDL holders. However, the Agency is unable to quantify these potential impacts, for reasons which are discussed further below in section IX.

This proposed rule is based on the broad authority of the Commercial Motor Vehicle Safety Act of 1986, as amended (CMVSA) (Pub. L. 99-570, Title XII, 100 Stat. 3207-170, 49 U.S.C. chapter 313); the Motor Carrier Safety Act of 1984, as amended (MCSA) (Pub. L. 98-554, Title II, 98 Stat. 2832, 49 U.S.C. 31136); and the Motor Carrier Act of 1935, as amended (MCA) (chapter 498, 49 Stat. 543, 49 U.S.C. 31502).

The CMVSA, implemented in 49 CFR parts 383 and 384, provides that “[a]fter consultation with the States, the Secretary of Transportation shall prescribe regulations on minimum uniform standards for the issuance of commercial drivers' licenses and learner's permits by the States . . .” (49 U.S.C. 31308). More specifically, the statute requires that: An individual may have only one CLP at a time; applicants must first pass a knowledge test that complies with minimum standards prescribed by the Secretary; and the CLP document must have the same information and security features as the CDL (49 U.S.C. 31302, 31308(2)-(4)). Additionally, 49 U.S.C. 31309(b) requires that a driver's record must be created for each CLP holder in the Commercial Driver's License Information System (CDLIS). Section 31311(a)(12)(A) requires that the State issue a CDL only to drivers domiciled in that State. This NPRM proposes to establish procedures for the issuance of CLPs by the State of domicile when the applicant takes and passes the knowledge test required by 49 CFR 383.25(a)(3) in a State other than the applicant's State of domicile.

The MCSA, which confers authority to the Secretary of Transportation to regulate drivers, motor carriers, and commercial motor vehicles (CMVs), requires the Secretary to “prescribe regulations on commercial motor vehicle safety.” (49 U.S.C. 31136(a)). At a minimum, the regulations shall ensure that: (1) CMVs are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of CMVs do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of CMVs is adequate to enable them to operate the vehicles safely; (4) the operation of CMVs does not have a deleterious effect on the physical condition of the operators; and (5) CMV drivers are not coerced to operate a CMV in violation of a regulation promulgated under 49 U.S.C. 31136(a) or chapters 51 and 313 of title 49. This proposed rule, like all of the Agency's CDL regulations, is based in part on the requirements of 49 U.S.C. 31136(a)(1) and (2) that CMVs be “operated safely” and that “the responsibilities imposed on [CMV drivers] do not impair their ability to operate the vehicles safely.” The changes to 49 CFR part 383 proposed in this rule are intended to facilitate drivers' ability to choose CMV training that best suits their needs. This NPRM does not directly address medical standards for drivers (49 U.S.C. 31136(a)(3)) or possible physical effects caused by operating a CMV (49 U.S.C. 31136(a)(4)). The Agency does not anticipate that this proposal would result in the coercion of CMV drivers (49 U.S.C. 31136(a)(5)).

The MCA authorized the Secretary of Transportation (Secretary) to prescribe requirements for the “qualifications . . . of employees” of for-hire and private motor carriers (49 U.S.C. 31502(b)). This rule, like all the Agency's CDL regulations, is based in part on that authority and is intended to ensure the qualifications of individuals who obtain a CLP.

Additionally, FMCSA is required to consider “costs and benefits” of any regulations prescribed under the authority of the MCSA or the MCA (49 U.S.C. 31136(c)(2)(A), 31502(d)). Those factors are addressed below.

Finally, the Administrator of FMCSA is delegated authority under 49 CFR 1.87(e)(1), (f) and (i) to carry out the functions vested in the Secretary by 49 U.S.C. chapters 313, 311, and 315, respectively, as they relate to CMV operators, programs, and safety.

The purpose of the CMVSA was twofold: (1) To improve highway safety by ensuring that drivers of large trucks and buses were qualified to operate those vehicles, and (2) to remove unsafe, unqualified drivers from our Nation's highways. As noted above, the CMVSA furthered these goals by imposing minimum CDL licensing standards and requiring States to comply with them in order to avoid the withholding of certain Federal funds (49 U.S.C. 31314). Central to this legal framework was the “domicile requirement,” which mandated that “the State may issue commercial drivers' licenses only to those persons who operate or will operate commercial motor vehicles and are domiciled in the State” [emphasis added] (49 U.S.C. 31311(a)(12)(A)). The implementing regulation provides that “no person may legally operate a CMV unless such person possesses a CDL . . . issued by his/her State of jurisdiction or domicile.” (49 CFR 383.23(a)(2)). Congress enacted the domicile requirement, referred to here as the “one driver/one license/one record” principle, as a means of preventing drivers from masking traffic violations or other disqualifying offenses in one State by applying for and receiving a “new” commercial license in another State.

Following Congress's enactment of amendments to 49 U.S.C. chapter 313, FMCSA published a final rule to implement those changes, “Commercial Driver's License Testing and Commercial Learner's Permit Standards,” on May 9, 2011 (2011 Final Rule) (76 FR 26854). The 2011 Final Rule added 49 CFR 383.79 to the Federal Motor Carrier Safety Regulations (FMCSRs), which, as noted above, provides that a person who holds a CLP would be able to take the CDL skills test outside of his/her State of domicile. The testing State would then send the skills test results to the State of domicile, which would be required to accept the results. The issue of knowledge testing outside the State of domicile was not raised during the 2011 rulemaking.

On October 13, 2016, FMCSA published “Commercial Driver's License Requirements of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Military Commercial Driver's License Act of 2012” (2016 Final Rule) (81 FR 70634). The 2016 Final Rule allows, but does not require, a State to accept applications from active duty military personnel who are stationed in that State, as well as administer the knowledge and skills tests for a CLP or CDL, including, as applicable, specialized knowledge tests for endorsements. States that choose to accept such applications are required to transmit the test results electronically to the State of domicile of the individual. The State of domicile may then issue the CLP or CDL on the basis of those test results.

In January 2017, the American Trucking Associations (ATA) requested regulatory guidance clarifying that State Driver Licensing Agencies (SDLAs) may accept the results of knowledge tests taken in another State to ease the travel burden on driver applicants attending a truck driver training school outside their State of domicile. The Agency responded to ATA's request by publishing “Commercial Driver's License Standards: Regulatory Guidance Concerning the Issuance of Commercial Learner's Permits” on August 3, 2017 (August 2017 Guidance) (82 FR 36101).

The August 2017 Guidance, which is consistent with the 2016 Final Rule, is predicated on the existence of an agreement between the testing State and State of domicile prior to the general knowledge test being administered by the testing State. It also emphasizes that the responsibility for compliance with all requirements of 49 CFR 383.71 and 383.73 remains with the State of domicile. FMCSA also stated that the guidance should not be construed to allow a State to issue a CLP or CDL to an individual who is not domiciled in that State. If this NPRM results in the publication of a final rule, the August 2017 Guidance would be obsolete at that point and would be rescinded.

The procedure for transmitting skills test results between States is already in place as a result of the 2011 Final Rule. To facilitate States' compliance with the 2011 Final Rule, the American Association of Motor Vehicle Administrators (AAMVA) developed two web-based systems for the electronic transmission of skills test results: The Commercial Skills Test Information Management System (CSTIMS) and the Report Out-of-State Test Results (ROOSTR). AAMVA continues to manage these systems and makes them available to the States at no charge. All States currently use one of these two systems to transmit or receive skills test results. After the publication of the August 2017 Guidance, AAMVA modified each of these systems to also allow transmission of the knowledge test results.

FMCSA's informal dialogue with SDLA personnel in early 2018 revealed that no State has yet opted to act pursuant to the August 2017 Guidance. Primary reasons cited were the need for enabling legislation by the individual State legislatures and the fact that such legislation was not likely to be forthcoming without definitive Federal regulatory requirements. Additionally, some States indicated they were focusing their limited resources on implementing other Federal requirements.

In July 2018, Secretary of Transportation Elaine L. Chao received a letter from 19 members of Congress requesting that FMCSA enact regulations requiring a State of domicile to accept the results of a knowledge test administered by another State in which the applicant received training. The letter, which is available in the docket of this rulemaking, cited a growing trend within the motor carrier industry to develop in-house central training sites to recruit and train new drivers from across the country. The letter further explained that these applicants are often unable to afford the financial burden associated with the travel requirement back to the State of domicile, from the State in which training takes place, in order to take the knowledge test and obtain the CLP. Finally, the letter emphasized that such a rule would not undermine the “one driver/one license/one record” principle, as the State of domicile would still be required to issue the credential. This NPRM responds to the concerns raised in the July 2018 Congressional correspondence.

This proposal would modify 49 CFR 383.79(a)(1) and (2) by permitting a State to administer the knowledge test(s) to an out-of-State applicant, and by requiring the State of domicile to accept those knowledge testing results. Under the proposed rule, a State would not be required to offer knowledge testing to out-of-State applicants. This approach is consistent with the current language of 49 CFR 383.79(a)(1), which permits, but does not require, a State to administer the skills test to out-of-State driver applicants who obtain training in that State. The NPRM provides that, where a State does elect to administer a knowledge test to out-of-State applicants, the State must administer that test in accordance with the current standards set forth in subparts F, G, and H of 49 CFR part 383. These include: Testing requirements for specific vehicle groups and endorsements, general and specialized areas of knowledge that must be tested, and testing manuals and methods. However, under the proposal, out-of-State applicants would not be required to obtain knowledge training in the testing State.

The Agency proposes to include all required knowledge testing within the scope of this proposal, in order to avoid a situation in which a driver applicant may take the general knowledge test out of State, but must return to their State of domicile to take a specialized knowledge test for one or more endorsements. For example, an individual who wants to become a commercial bus driver must take the general knowledge test for the CLP, as well as the knowledge test for the P endorsement. Under the NPRM, the testing State could permit the driver applicant to take both knowledge tests. Additionally, current CDL holders may wish to upgrade their license by adding an endorsement; under this proposal, they could also take the applicable knowledge test(s) outside their Sate of domicile, if the testing State offers that option. When a driver applicant passes the knowledge test(s), the testing State would transmit the results to the State of domicile through a secure, safe, electronic means, which would be required to accept those results in fulfillment of the applicant's testing requirements.

FMCSA intends to simplify the task of obtaining a CLP or endorsement for applicants wishing to take the knowledge test(s) outside their State of domicile, while maintaining the “one driver/one license/one record” requirement. In the Agency's judgment, the NPRM would not adversely impact safety because the current standards for administering the knowledge test(s) would not change. All driver applicants are subject to the same pool of test questions, regardless of the State in which testing occurs. “States must use the FMCSA pre-approved pool of test questions to develop knowledge tests for each vehicle group and endorsement” (49 CFR 383.133(b)(1)). The pool of questions comes from AAMVA's “2005 CDL Test System (July 2010 or newer Version) 2005 Test Item Summary Forms.” Each test administered must have a set number of questions overall, with a prescribed number of questions from each of the knowledge topic areas described in 49 CFR 383.111. Under § 383.135(a), driver applicants must correctly answer at least 80 percent of knowledge test questions to achieve a passing score. A State of domicile, therefore, may accept knowledge test results from a testing State and issue the CLP without concern that different States may have different testing standards.

Additionally, this proposal would reduce travel time and other associated costs for applicants who choose to obtain CMV driver training outside their State of domicile and would otherwise have to return to their State of domicile for knowledge testing and issuance of the physical CLP or upgraded CDL. To the extent that reducing travel costs associated with out-of-State training increases the number of applicants or applicant access to high-quality training programs, there could be positive impacts on driver safety. However, the Agency does not have data indicating such an effect. FMCSA invites qualitative or quantitative information addressing the potential benefits of the NPRM.

FMCSA anticipates that this proposal would require States to modify their current CLP and CDL upgrade issuance processes to some extent. For example, because the State of domicile would remain responsible for ensuring compliance with 49 CFR 383.71 and 383.73, the SDLA would need to permit the driver applicant to apply for a CLP before completing the knowledge test in the testing State.

After accepting knowledge test results from the testing State, the State of domicile would issue the CLP or endorsement to the applicant in accordance with current requirements set forth in 49 CFR part 383. Under the “one driver/one license/one record” requirement, a State could not issue a CLP or endorsement to an individual who is not domiciled in that State; only the State of domicile may create the Commercial Driver's License Information System (CDLIS) driver record and issue the physical CLP (with a P, S, or N endorsement, if applicable  1 ), or add an endorsement to a driver's existing CDL. The State of domicile would need to establish a process for delivering the physical CLP, or upgraded CDL, to the driver applicant in other than the State of domicile. It would be up to the State of domicile to determine method(s) of delivery that would allow the applicant to receive the CLP or upgraded CDL.

As noted above, the process for transmitting knowledge test results between States, through either CSTIMS or ROOSTR, is already in place. States will need to integrate this capability into their own systems and procedures. The Agency notes, however, that transmission of test results through either CSTIMS or ROOSTR does not require any changes to CDLIS.

Finally, the Agency typically allows three years for the States to come into compliance with regulatory changes. Would a three-year compliance date allow sufficient time for States to accomplish changes in their laws and procedures necessary to implement the proposed requirements? Given that the functionality to transmit knowledge test results currently exists in CSTIMS and ROOSTR, could the proposed requirements be implemented within two years? FMCSA seeks comment and supporting data addressing the length of time States would need to comply with the changes proposed in the NPRM.

The Agency requests that commenters address the questions below, but also welcomes comments or questions on any other issues related to this proposal.

1. To what extent will SDLAs need to adapt existing procedures and processes to receive out-of-State knowledge testing results and remotely deliver the physical CLP or upgraded CDL? What are the costs associated with making these changes?

2. What additional State implementation concerns are raised by today's proposal?

3. Would two years, or three years, allow SDLAs sufficient time to achieve compliance with the proposed requirement to accept any out-of-State knowledge test results? Please explain the basis for your preferred compliance date.

4. If this proposal is finalized, would your SDLA offer knowledge testing to out-of-State CLP applicants or CDL holders wishing to add an endorsement to their license? Why or why not?

5. Would the proposed changes allow applicants who take driver training outside their State of domicile to obtain a CLP or upgraded CDL more efficiently? If so, please provide specific examples of time or cost savings that may accrue if the proposed changes were adopted.

The FMCSRs, and any exceptions to the FMCSRs, apply only within the United States (and, in some cases, United States territories). Motor carriers and drivers are subject to the laws and regulations of the countries in which they operate, unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences among nations.

The text of 49 CFR 383.79 would be revised by adding new paragraph (a)(1) permitting a State to administer the general knowledge test, and/or specialized knowledge tests, to a CLP or endorsement applicant who is to be licensed in his or her State of domicile and requiring the testing State to transmit the knowledge testing results to the applicant's State of domicile. New paragraph (a)(2) would require the CLP applicant's State of domicile to accept knowledge testing results from the testing State in fulfillment of the applicant's testing requirements under § 383.71 and the State's test administration requirements under § 383.73. Current paragraph (a) would be re-designated as new paragraph (b); current paragraph (b) would be re-designated as new paragraph (c). Section 383.79 would be re-titled “Knowledge and driving skills testing of out-of-State applicants; knowledge and driving skills testing of military personnel” to reflect the proposed revisions to the current regulatory text, as summarized above.

FMCSA evaluated the potential impacts of the proposed rule and determined that it is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011). Accordingly, the Office of Management and Budget has not reviewed it under that Order. The proposed rule also is not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.6 dated December 20, 2018). The Agency's analysis follows.

The Agency's previous regulatory guidance on 49 CFR part 383—Commercial Driver's License Standards Section 383.73 State Procedures (82 FR 36101 (Aug. 3, 2017)) clarifies that Section 383.73 does not prohibit States from accepting and processing CLP applications from out-of-State applicants ( e.g., individuals who are not domiciled in the State but who receive training there) and administering the general knowledge test to such applicants, provided there is agreement between the testing State and the applicant's State of domicile. In September 2018, AAMVA made available to States the capability to receive knowledge test results from other States within CSTIMS and ROOSTR. As noted above, to date, no States are using the capability to transmit out-of-State knowledge test results under the existing guidance.

The new capability allows the testing State to enter knowledge testing results in the web-based system. States that opt to receive email notifications will receive notification that an applicant in their State has taken a knowledge test. The State of domicile is then responsible for posting the results to the driver record.

States currently access CSTIMS and ROOSTR through different platforms and use different procedures to receive the results of skills tests taken out of State. These existing systems and procedures will impact the manner in which States comply with the proposed rule and receive out-of-State knowledge test results.

If this proposed rule results in a final rule, FMCSA would rescind the current guidance, which otherwise expires on August 3, 2022. The proposed rule would allow, but not require, States to administer general and specialized knowledge tests to out-of-State drivers applying for a CLP, and specialized knowledge tests to CDL holders wishing to upgrade their license by adding an endorsement. However, the proposed rule would require the State of domicile to accept results from the testing State. Therefore, all States would have to be capable of accepting knowledge testing results transmitted from the testing State. FMCSA also notes that, as explained above, the proposed rule would permit out-of-State knowledge testing for all endorsements, in contrast to the current guidance, which addresses only the general knowledge test required under 49 CFR 383.25(a)(3). That guidance was issued in response to stakeholders' request for clarification that the general CLP knowledge test could be taken out of State.

The State of domicile would need to allow the individual to apply for a CLP or endorsement prior to taking the applicable knowledge test(s) in the testing State. States also may have to develop procedures for receiving results of the knowledge test(s) from out of State. The extent of changes needed will depend on the existing platform and current processes for accepting the skills test results. For example, States that implemented a manual process for receiving skills test results may use a similar process to receive knowledge test results. On the other hand, States that currently receive skills test results automatically may need only minor incremental programming changes to add the ability to receive knowledge test results in the same manner.

Costs to implement changes to State licensing procedures and information technology (IT) systems may include upfront (onetime) and ongoing costs (or cost savings) for each entity. Onetime costs may involve State personnel time to plan, develop practices, implement system changes, revise outreach materials, and train staff. Associated onetime IT system changes may involve programming, testing, and training costs which may include State or contractor personnel time. The extent to which these activities would be incremental costs attributable to the rule will depend in part on the ability of States to coordinate changes with other needed maintenance and revisions.

Once able to receive results of out-of-State knowledge testing States may also incur ongoing incremental costs (or cost savings) associated with the new procedures, depending on the specific changes. For example, a manual procedure would impact State personnel time in the State of domicile each time a testing State transmits test results. There may also be some transfer of costs from one State to another depending on the specific procedures that States adopt for remote delivery of the physical CLP or upgraded CDL. These effects would depend on the extent to which States elect to administer knowledge tests to out-of-State drivers, thus necessitating that the State of domicile receive the test results and issue a CLP or upgraded CDL.

Given the interest from members of Congress and the ATA, the Agency expects that at least some States would allow out-of-State drivers to take the knowledge test(s) to better accommodate truck and bus driver schools operating a centralized training model within their boundaries. In comments submitted on the Commercial Driver's License Requirements of the Moving Ahead for Progress in the 21st Century Act and the Military Commercial Driver's License Act of 2012 (Docket number: FMCSA-2016-0051), ATA discussed training schools that use a centralized training model. According to ATA, under this model, these schools incentivize students through discounted tuition and potential employment to travel to another State for CDL training. The July 2018 Congressional letter to Secretary Chao, discussed above, also noted a trend toward central training sites to recruit and train new drivers from across the country.

For the 34 States that have fully adopted CSTIMS, FMCSA estimates that on average approximately 22,000 applicants take the skills test out of State annually (out of an approximate 205,000 who take the test and pass in these States). The number of skills tests taken in States that use limited CSTIMS functions or that use ROOSTR are not tabulated or reported. Some States may also elect to offer out-of-State knowledge testing to these applicants. However, since ongoing costs are likely to be highly State-specific and the Agency has no basis to estimate how many States would allow out-of-State drivers to take the knowledge test(s), the Agency is unable to quantify these costs. The Agency invites comments on the level of interest among the States in permitting out-of-State drivers to take the knowledge test(s) and anticipated State-level costs.

Finally, potential driver applicants may experience minor cost savings ( e.g., opportunity costs of time and travel) depending on how they would obtain knowledge training, take the knowledge test, and obtain a CLP in the absence of the proposed rule. For example, the ATA comments and the 2018 Congressional letter note that centralized training schools recruit candidates from all over the nation who then must incur the time and expense of returning to their State of domicile to take the knowledge test and obtain their CLP. However, the Agency does not have data on the amount and value (opportunity cost) of that time and travel expense in comparison to the baseline level of expenditures.

As noted above, all States must use the FMCSA preapproved pool of test questions to develop knowledge tests for each vehicle group and endorsement. Because the State in which a driver takes the knowledge test does not change the potential content covered, the Agency does not anticipate that this NPRM would adversely impact safety. The Agency does not have data on the impact the flexibility to take the knowledge test(s) out of State will have on the pool or skill level of CDL holders. In their 2016 comments, ATA touts the success of the centralized training model in terms of favorable knowledge and skills test pass rates. To the extent this proposal would further accommodate the centralized training model, the Agency invites comment and supporting data addressing the safety impact of the NPRM.

There are a number of uncertainties associated with the Agency's regulatory evaluation, primarily related to data limitations. Due to the variety of State-based CDL IT systems and procedures, the extent to which these would need to be modified to comply with the proposed rule will vary by State. The Agency does not have data on either the approach each State will take to interface with the CSTIMS/ROOSTR capability to receive knowledge test results or their intent to offer knowledge tests to out-of-State applicants. In addition, the number of applicants who will take knowledge tests out of State, and the costs saved from reducing travel time and cost under the proposed rule, is not known.

In considering these data limitations, the Agency determined that more or better information to quantify costs and benefits would not likely change its selection of the regulatory alternative (compared to the “no action” alternative). Also, the proposed rule represents a logical extension to the existing requirement to accept skills test results administered out of State and, given the capabilities already in place, only relatively minor changes may be needed for compliance. Therefore, in the interest of providing flexibility to the CDL program in a relatively short timeframe, the Agency has not pursued a data collection effort to obtain estimates from the States to fill in these data gaps.

This proposed rule is considered an E.O. 13771 deregulatory action. The Agency cannot estimate the cost savings; however, the cost savings are discussed qualitatively in the rule's economic analysis.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of fewer than 50,000 (5 U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses.

As described above, this proposal, if issued as a final rule, may result in necessary expenditures by States to receive knowledge testing results from applicants who take the knowledge test(s) outside their State of domicile. Neither States nor applicants are small entities. In addition, the CDL Program Implementation (CDLPI) grant program provides financial assistance to States to achieve compliance with the requirements of 49 CFR parts 383 and 384. Allowable costs under the CDLPI grant awards include, but are not limited to, expenses for computer hardware and software, publications, testing, personnel, training, and quality control.

As discussed above, FMCSA has considered whether the proposed rule would have a significant economic impact on a substantial number of small entities. Consequently, I certify that the proposed action would not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning the provisions or options for compliance, please consult the FMCSA point of contact, Ms. Nikki McDavid, listed in the For Further Information Contact section of this proposed rule.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

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 $161 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2017 levels) or more in any one year. Though this proposed rule would not result in such an expenditure, the Agency does discuss the effects of this rule in this preamble.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for Federalism under Section 1(a) of Executive Order 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposal would amend the requirements in 49 CFR part 383 for the issuance of CLPs under specified circumstances. The Agency's commercial licensing regulations and requirements for State compliance, set forth in parts 383 and 384, do not have preemptive effect. States' participation in the CDL program is voluntary; States may withdraw at any time, although doing so will result in the loss of certain Federal aid highway funds pursuant to 49 U.S.C. 31314. Because this proposal would not significantly amend requirements already in effect for participating States, FMCSA has determined that it would not have a substantial direct effect on the States, on the relationship between the Federal and State governments, or on the distribution of power and responsibilities among the various levels of government.

However, the Agency recognizes that, as a practical matter, this NPRM could have some impact on the States' current processes for issuing CLPs. Accordingly, by letters sent on January 8, 2019, FMCSA offered officials of the National Governors Association (NGA), the National Conference of State Legislatures (NCSL), and AAMVA the opportunity to meet with FMCSA to discuss any questions or concerns about the impact of the proposal on current SDLA processes. Copies of those letters are available in the docket of this rulemaking. None of the groups requested a meeting in response to the Agency's invitation.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the effect of the regulation on the environmental health and safety of children. The Agency determined this proposed rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.

FMCSA reviewed this proposed rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. The Agency completed a Privacy Threshold Assessment (PTA) to assist in analyzing the new rulemaking to determine if it creates privacy risk for individuals that could require other entities to collect, use, store or share personally identifiable information (PII), or deploy technologies as a result of this rulemaking implementation. The PTA is also used to identify programs and systems that are privacy sensitive and help determine whether additional privacy compliance, such a PIA or System of Records Notice (SORN), is required for a particular rulemaking or system. Based on the preliminary adjudication of the PTA by the FMCSA Privacy Officer, this rule does not require the collection of PII and the Agency is not required to conduct a PIA. The PTA will be submitted to the Department of Transportation's Privacy Officer for review and final adjudication.

The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

FMCSA has analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, FMCSA did not consider the use of voluntary consensus standards.

FMCSA analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph (s)(6) and paragraph (t)(2). The Categorical Exclusion (CE) in paragraph (s)(6) covers regulations concerning the requirement for States to give knowledge and skills tests to all qualified applicants for a CDL; the CE in paragraph (t)(2) covers regulations concerning State policies and procedures and information systems concerning the qualification and licensing of persons who apply for a CDL. The proposed requirements in this rule are covered by these CEs and the NPRM does not have any effect on the quality of the environment. The CE determination is available for inspection or copying in the regulations.gov website listed under ADDRESSES .

In consideration of the foregoing, FMCSA proposes to amend 49 CFR chapter 3, part 383 to read as follows:

The addition and revision to read as follows:

If you submit a comment, please include the docket number for this notice (FMCSA-2018-0348), 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 methods. 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 the Agency can contact you if it has questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov and put the docket number (FMCSA-2018-0348) 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 in 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.

Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the general public by the submitter. Under the Freedom of Information Act (5 U.S.C. 552), 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 meeting the definition noted above will not be placed in the public docket of this ANPRM. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any comments 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, go to http://www.regulations.gov and insert the docket number (FMCSA-2018-0348) in the “Keyword” box and click “Search.” Next, click the “Open Docket Folder” button and choose the document listed to review. If you do not have access to the internet, you may view the docket by visiting the Docket Management Facility in Room W12-140 on the ground floor of the U.S. Department of Transportation (DOT) West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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 https://www.transportation.gov/privacy/.

Section 204(a) of the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, 546, Aug. 9, 1935), as codified at 49 U.S.C. 31502(b), authorizes the Secretary of Transportation (Secretary) to “prescribe requirements for—(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation.” This ANPRM specifically addresses the maximum HOS of drivers transporting agricultural commodities by commercial motor vehicle (CMV).

The Motor Carrier Safety Act of 1984 provides concurrent authority to regulate drivers, motor carriers, CMVs, and vehicle equipment. Section 206(a) of that act (98 Stat. 2834), codified at 49 U.S.C. 31136(a), grants the Secretary broad authority to issue regulations “on commercial motor vehicle safety.” The regulations must ensure that “(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely . . .; (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators; and (5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of a regulation promulgated under this section, or chapter 51 or chapter 313 of this title.” (49 U.S.C. 31136(a)(1)-(5)).

The provisions this ANPRM addresses are connected primarily with 49 U.S.C. 31136(a)(1)-(2) relating to safety of the vehicle and driver and secondarily with (a)(4) relating to the health of the driver. This ANPRM does not directly address medical standards for drivers (section 31136(a)(3)). This ANPRM does not propose any specific regulatory requirements; therefore, FMCSA does not anticipate that drivers would be coerced (section 31136(a)(5)) as a result of this notice.

More specifically, this ANPRM is based on a statutory exemption from HOS requirements for drivers transporting “agricultural commodities” “during planting and harvesting periods, as determined by each State.” The exemption was initially enacted as Sec. 345(a)(1) of the National Highway System (NHS) Designation Act of 1995 [Pub. L. 104-59, 109 Stat. 568, 613, Nov. 28, 1995].

Section 4115 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) [Pub. L. 109-59, 119 Stat. 1144, 1726, Aug. 10, 2005] retroactively amended the Motor Carrier Safety Improvement Act of 1999 (MCSIA) [Pub. L. 106-159, 113 Stat. 1748, Dec. 9, 1999] by transferring Sec. 345 to new Sec. 229 of MCSIA [113 Stat. 1773]. Section 4130 of SAFETEA-LU then revised Sec. 229, as transferred by Sec. 4115, mainly by adding the current definitions of “agricultural commodity” and “farm supplies for agricultural purposes” [119 Stat. 1743], as discussed further below. This definition is codified at 49 CFR 395.2.

Section 32101(d) of the Moving Ahead for Progress in the 21st Century Act (MAP-21) [Pub. L. 112-141, 126 Stat. 405, 778, July 6, 2012] revised Sec. 229 again, mainly by expanding the 100 air-mile radius of the exemption to 150 air miles. This change is reflected in 49 CFR 395.1.

The Administrator of FMCSA is delegated authority under 49 CFR 1.87(f) and (i) to carry out the functions vested in the Secretary by 49 U.S.C. chapters 311 and 315, respectively, as they relate to CMV operators, programs, and safety.

The HOS rules, set forth in 49 CFR part 395, limit property-carrying CMV drivers to 11 hours of driving time within a 14-hour period after coming on duty following 10 consecutive hours off duty (except that drivers who use sleeper berths may combine a period of 2 hours of off-duty time with a period of 8 consecutive hours in the sleeper berth). Drivers must take at least 30 consecutive minutes off duty if more than 8 hours have passed since their last off-duty period of at least 30 minutes, if they wish to drive or continue driving. Drivers may not drive after accumulating 60 hours of on-duty time in any 7 consecutive days, or 70 hours in any 8 consecutive days, however, drivers of property-carrying CMVs may restart the 60- or 70-hour clock by taking 34 consecutive hours off duty (or 24 hours off duty for some industries). The Agency is currently preparing an NPRM (RIN 2126-AC19) which will propose revisions to certain HOS requirements to provide greater flexibility for drivers, without adversely affecting highway safety.

As discussed further below, these limits on maximum driving and on-duty time do not apply during harvest and planting periods, as determined by each State, to drivers transporting agricultural commodities (and farm supplies for agricultural purposes) from the source of the commodities to a location within a 150-air-mile radius from the source.

On June 7, 2018, FMCSA issued regulatory guidance on the transportation of agricultural commodities as defined in § 395.2 (83 FR 26374). The guidance addressed various issues related to the statutory term “source of the commodities,” but it did not directly address the scope or meaning of the term “agricultural commodity.” Specifically, the June 2018 guidance addressed: Drivers operating unladen CMVs enroute to pick up an agricultural commodity or returning from a delivery point; drivers engaged in trips beyond the 150 air miles from the source of the commodity; determining the “source” of agricultural commodities for purposes of the exemption; and how the exemption applies when agricultural commodities are loaded at multiple sources during a trip.

Although the HOS exemption enacted by Sec. 345(a)(1) of the NHS Designation Act did not define the term “agricultural commodities,” Sec. 4130 of SAFETEA-LU enacted a definition now codified at 49 CFR 395.2. In that definition, “ Agricultural commodity” refers to any agricultural commodity, non-processed food, feed, fiber, or livestock (including livestock as defined in sec. 602 of the Emergency Livestock Feed Assistance Act of 1988 [7 U.S.C. 1471] and insects). FMCSA added to § 395.2 the definition of “livestock” as set forth in the Emergency Livestock Feed Assistance Act of 1988, defining “ Livestock” as cattle, elk, reindeer, bison, horses, deer, sheep, goats, swine, poultry (including egg-producing poultry), fish used for food, and other animals designated by the Secretary of Agriculture that are part of a foundation herd (including dairy producing cattle) or offspring; or are purchased as part of a normal operation and not to obtain additional benefits under the Emergency Livestock Feed Assistance Act of 1988, as amended.

Congress recently amended the definition of “livestock” in the Emergency Livestock Feed Assistance Act of 1988 (Section 12104 of the Agriculture Improvement Act of 2018 [Pub. L. 115-334, 132 Stat. 4490, December 20, 2018]). Among other things, the 2018 amendment revised the definition of “livestock” by removing the term “fish used for food” and adding “llamas, alpacas, live fish, crawfish, and other animals that” are part of a foundation herd (including dairy producing cattle) or offspring; or are purchased as part of a normal operation and not to obtain additional benefits [under the Emergency Livestock Feed Assistance Act of 1988]”. The 2018 amendment also removed the Secretary of Agriculture's discretion to designate animals in addition to those specifically listed.

As explained above, the current definition of the term “livestock” in § 395.2 restates, without change, the definition of “livestock” as set forth in the Emergency Livestock Feed Assistance Act of 1988 when FMCSA initially implemented this statutory provision in 2007. The Agency intends to conform the current text of the definition of “livestock” in § 395.2 to the change made by to the text of the 2018 amendment to the Emergency Livestock Feed Assistance Act of 1988, as discussed above. That conforming change, adding llamas, alpacas, live fish and crawfish, deleting the term “fish used for food,” and removing the reference to the Secretary of Agriculture's discretion to designate additional animals, will be made at a later date. The Agency notes, however, that a primary sponsor of the 2018 amendment stated her intention that transporters of these additional species be included within the scope of the HOS exemption set forth in § 395.1(k)(1). 1 FMCSA therefore concludes that the 2018 changes to the definition of “livestock” in the Emergency Livestock Feed Assistance Act of 1988 are self-executing for that purpose, becoming effective on December 20, 2018. 2 The Agency intends to issue guidance addressing FMCSA's implementation of this statutory change in the near future.

Although the statutory definition of “agricultural commodity,” set forth in § 395.2, is quite detailed in some respects, it is also circular and ambiguous. For example, “agricultural commodity” is defined in part as “any agricultural commodity. . .” The definition is thus susceptible to multiple interpretations, resulting in potentially inconsistent application of the HOS exemption set forth in § 395.1(k)(1). The Agency therefore seeks comment, along with relevant quantitative or qualitative data, addressing how FMCSA could define or interpret the term “agricultural commodity” in § 395.2 more clearly, while remaining consistent with Congress's intent to provide a limited HOS exemption for CMV drivers who transport agricultural commodities. FMCSA is specifically interested in knowing what else should be added to the definition of “agricultural commodity.” The purpose of the definition is to determine which agricultural commodities are eligible for the HOS exemption provided in § 395.1(k)(1), which is designed to allow additional driving and working hours for drivers transporting these commodities. The exemption gets the agricultural commodities to market with fewer delays “during planting and harvesting periods, as determined by each State.” Keeping that in mind, and the statutory limitation of using this exemption during “planting and harvesting periods, as determined by each State,” should the Agency establish more specific, but still broad, categories of eligible commodities falling within the definition of “any agricultural commodity”? Alternatively, should the Agency adopt a list of individual commodities (either by name or specified agricultural classification) that would fall within the definition?

In addition to the ambiguous term “any agricultural commodity,” the definition of “agricultural commodity” in § 395.2 also refers to “non-processed food, feed, fiber, or livestock.” Although FMCSA has not issued formal regulatory guidance addressing how the term “non-processed” should be defined or applied, in its June 2018 guidance concerning the transportation of agricultural commodities the Agency provided some guidance by stating that: “The source may be any intermediate storage or handling location away from the original source at the farm or field, provided the commodity retains its original form and is not significantly changed by any processing or packing” [emphasis added]. 3

The Agency requests comments on how the term “non-processed” is currently understood and applied. How can the Agency best determine the point at which an agricultural commodity, such as food, feed, or fiber, becomes “processed?” The Agency welcomes specific examples of agricultural commodities that should be considered “non-processed” within the meaning of § 395.1(k)(1). FMCSA also requests comment on the definition of the term “livestock,” as discussed further below.

The Agency notes that the U.S. Department of Agriculture's (USDA) statutes and regulations classify and define the term “agricultural commodity” in a variety of ways, depending on the underlying statutory and regulatory framework. The extent to which USDA definitions of the term are consistent with the definition in § 395.2 may become relevant when transporters of agricultural commodities by CMV are subject to certain USDA requirements. For example, USDA administers the Perishable Agricultural Commodities Act (PACA) (7 U.S.C. 449a(1)), which establishes a code of fair trading practices for the benefit of growers, shippers, distributors, retailers, and others. The PACA is a remedial statute, designed to protect those who deal in perishable agricultural commodities from unfair and fraudulent practices. The USDA enforces PACA through a licensing system. The PACA implementing regulations, set forth in 7 CFR subchapter B, part 46, require perishable agricultural commodity grocery wholesalers, retailers, commission merchants, processors, brokers, and truckers under specified circumstances, 4 to obtain a PACA license. Those agricultural transporters subject to PACA requirements are also subject to the Federal Motor Carrier Safety Regulations (FMCSRs), including HOS regulations.

The PACA defines “perishable agricultural commodity” as “any of the following, whether or not frozen or packed in ice: Fresh fruits and fresh vegetables of every kind and character. . .” (7 U.S.C. 499a(b)(4)(A)). The PACA regulations state that the term “fresh fruits and vegetables” “does not include those perishable fruits and vegetables which have been manufactured into articles of food of a different kind or character” (7 CFR 46.2(u)).

To avoid confusion for both transporters of agricultural commodities and enforcement personnel, FMCSA is considering whether it would be feasible and desirable to revise the definition of “agricultural commodity” in § 395.2 to make the term more compatible with applicable USDA rules and practice. The Agency notes, however, that any revisions to its definition of “agricultural commodity” must remain consistent with statutory intent to allow an exemption tailored to the needs of a specific segment of CMV drivers—those transporting agricultural commodities “during planting and harvesting periods, as determined by each State.” One possible implication of that restriction is that the exemption should apply to commodities subject to relatively short-term perishability. Accordingly, to the extent that PACA's definition of “agricultural commodity” includes “frozen” fruits and vegetables, it is inconsistent with FMCSA's definition of the term. The Agency concludes that, because frozen fruits and vegetables are processed and packaged, Congress did not intend to include frozen commodities within the scope of the definition as codified in § 395.2. On the other hand, there may be many non-frozen fruits and vegetables that fall within the scope of both FMCSA's definition of “agricultural commodity” and USDA's definition of “fresh fruits and vegetables” set forth in 7 CFR 46.2(u). One approach might be for FMCSA to cross-reference or otherwise incorporate applicable PACA or other USDA definitions or interpretations, many of which are already familiar to some transporters of agricultural commodities. The Agency requests feedback on this approach, particularly from stakeholders subject to regulation by both USDA and FMCSA. The Agency would also like to know whether enforcement officials would find helpful cross-references to, or incorporation of, specified USDA rules and practices.

Finally, the Agency is aware that some stakeholders believe the current definition of “livestock,” as set forth in § 395.2, is incomplete. For example, transporters of animals not currently included in the definition have argued that they should be eligible for the HOS exemption in § 395.1(k)(1) because such animals are subject to risks to health and safety in transit as are cattle, sheep, swine, and other “covered” animals. FMCSA notes that the NHS Designation Act's definition of “agricultural commodity,” as discussed above, includes, but is not limited to, livestock as defined in the Emergency Livestock Feed Assistance Act of 1988. The Agency solicits comments on whether the current definition of “livestock” in § 395.2 should be expanded beyond the animals identified in the Emergency Livestock Feed Assistance Act (including, for purposes of this discussion, the animals added by Section 12104 of the Agriculture Improvement Act of 2018, as discussed above). Another possible approach would be to adopt a definition of “livestock” broad enough to include all eligible animals, including those covered by the Emergency Livestock Feed Assistance Act (as amended), without listing them individually.

FMCSA requests that commenters respond to the questions below, but the Agency also welcomes comments or questions on any other issues related to the definitions of “agricultural commodity” and “livestock” as those terms are used in § 395.1(k)(1). Please provide specific examples and, to the extent practicable, quantitative or qualitative data to support your answers.

1. The statute and regulation define a term with the same term: “ Agricultural commodity means “any agricultural commodity . . . .” Does that lack of detail cause compliance or enforcement problems? Should FMCSA consider adopting a list of specific agricultural commodities, or clarify its current approach utilizing the more general definition? If you wish to suggest that specific commodities ( e.g., sod or other types of horticulture) be included in the definition, please explain how they fit within the statutory definition, and provide information about the average and maximum transportation times and the extent to which the commodities are perishable.

2. Should FMCSA define or otherwise clarify the term “non-processed,” as applied in the definition of “agricultural commodity?” If so, given the context of harvesting and planting seasons referenced in the applicable statute, how should that term be defined? Please provide examples of “non-processed” agricultural commodities that should be included and discuss the distinction between “processed” and “non-processed.”

3. Would clarification or definition of other terms used in the definition of “agricultural commodity,” such as “food,” “feed,” or “fiber,” be helpful? Please provide recommendations and data to support your suggested definition.

4. Should the definition of “livestock” be revised to include aquatic animals in addition to live fish and crawfish? Please provide data to support your answer, such as how far aquatic animals are typically transported and why you believe the HOS exemption would be appropriate for the transportation of specific aquatic animals.

5. Is the list of animals in the definition of “livestock” in § 395.2 adequate? As noted above, the Agency intends to add llamas, alpacas, live fish, and crawfish to the definition, consistent with Agricultural Improvement Act of 2018 amendment to the Emergency Livestock Feed Assistance Act of 1988. Should other animal species be included? Please provide data on the average and maximum transportation times for additional livestock you believe should be included in the definition of “livestock” in § 395.2 and the impacts of longer transportation times.

6. Are there cost or safety implications of adding specific agricultural commodities or livestock to the current definitions of “agricultural commodity” and “livestock”? Please provide data to support your answer.

7. Are there benefits of adding specific agricultural commodities or livestock to the current definitions of “agricultural commodity” and “livestock”? Please provide data to support your answer.

8. USDA regulations define “agricultural commodity” in a variety of ways, depending on the underlying statutory authority and regulatory purpose. For transporters of agricultural commodities subject to both USDA and FMCSA regulations, what are the practical implications of not having consistent definitions of that term? Should FMCSA adopt or cross-reference any of the definitions applied by USDA, to the extent they are compatible with the statutory definitions of “agricultural commodity” and “livestock” incorporated in § 395.2?

9. If the definitions of “agricultural commodity” or “livestock” in § 395.2 were more consistent with applicable USDA definitions of the terms, would use of the definition for purposes of § 395.1(k)(1) result in cost or benefit impacts to CMV drivers who transport such commodities, the motor carriers who employ them, growers or distributors of those commodities, or enforcement personnel? Please provide data to support your answer.

10. Are motor carriers being exposed to financial liability in situations where their drivers complied with HOS regulations and (1) the receiver refused delivery because the shipment did not meet contract specifications requiring the driver to deliver to an alternative location; and/or (2) the freight claim was not paid or was reduced because the grade standard of quality and condition, or temperature at destination, was not acceptable due to the driver's compliance with HOS regulations; (3) the receiver refused delivery because the shipment was late due to the driver's compliance with HOS regulations; (4) the receiver made the driver wait to unload because the shipment was late and charged a late delivery fee due to the driver's compliance with HOS regulations?

11. Do you believe ambiguities in the current definition of the terms “agricultural commodity” or livestock,” as applied to the HOS exemption in § 395.1(k)(1), impact highway safety? If so, how?

Issued under the authority of delegation in 49 CFR 1.87.

On May 28, 2019, NHTSA published an ANPRM to obtain public comments on the near- and long-term challenges of testing and verifying compliance with existing crash avoidance (100-series) Federal Motor Vehicle Safety Standards for Automated Driving System-Dedicated Vehicles that lack traditional manual controls necessary for a human driver to maneuver the vehicle and other features intended to facilitate operation of a vehicle by a human driver, but that are otherwise traditional vehicles with typical seating configurations. The ANPRM stated that the closing date for comments is July 29, 2019.

On July 15, 2019, NHTSA received a request from the American Public Transportation Association (APTA) for a 60-day extension of the comment period. The request can be found in the docket for the ANPRM identified in the heading of this notice. NHTSA has considered this request and believes that a 30-day extension beyond the original due date appropriately balances NHTSA's interest in providing the public with sufficient time to comment on the complex and novel questions raised in the ANPRM, with its interest in safely addressing regulatory barriers in a timely manner. This is to notify the public that NHTSA is extending the comment period on the ANPRM, and allowing it to remain open until August 28, 2019.

We note that, in addition to requesting an extension of the ANPRM comment period, APTA also requested NHTSA hold a public meeting or webinar on the issues raised in the ANPRM. NHTSA is considering whether to hold a public meeting or webinar on the issues raised in the ANPRM, and will decide whether to do so once the agency has considered the comments received during the full extended comment period.