The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

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

Communications should identify both docket numbers (FAA Docket No. FAA-2020-0567; Airspace Docket No. 20-AAL-15) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2020-0567; Airspace Docket No. 20-AAL-15.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. 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 https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11D lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

Due to the decommissioning of the Burwash, YT, Canada, NDB it requires amendment to Federal airways A-15, V-444, and jet routes J-502 and J-511 to remove associated airway segments.

Colored Federal airway A-15 is currently published from the Ethelda, BC, Canada, NDB to the Delta Junction, AK, NDB and will require deletion of the segment between the Haines, AK, NDB and the Beaver Creek, YT, NDB. The requested amended route will stop at the US/Canadian border and resume at Beaver Creek YT, NDB.

Federal airway V-444 navigates from Barrow, AK, to the Burwash, YT, NDB, and the portion of the airway from the intersection of Northway 120° (M) 138° (T) and Gulkana 062° (M) 079° (T) to the Burwash, YT, NDB will require deletion.

Federal airway J-502 currently navigates from Seattle, WA to Kotzebue, AK and will require amendment to remove the segment from an intersection at the US/Canadian border north of the Sister Island, AK, VORTAC to an intersection at the US/Canadian border southeast of Northway, AK, VORTAC.

Federal airway J-511 currently navigates from Dillingham, AK, to Burwash Landing, YT. The segment of the route between Burwash Landing, YT, Canada and the intersection of Gulkana 078° radial; and Northway 137° will require deletion. The airway will terminate at the US/Canadian boundary.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to amend Federal airways A-15, V-444, J-502, and J-511 The proposed Federal airway actions are described below.

A-15: A-15 currently extends between the Ethelda, BC, Canada, NDB and the Delta Junction, AK, NDB. This action proposes to remove the segment between the Intersection of Sisters Island 311° (M), 331° (T), and Whitehorse 189° (M), 207° (T) radials and Beaver Creek, YT, NDB. The unaffected portions of the existing route would remain as charted.

V-444: V-444 currently extends between the Barrow, AK, NDB and the Burwash, YT, NDB. This action proposes to remove the segment between the intersection of the Northway 120° (M), 138 ° (T), and Gulkana 062° (M), 079° (T) and Burwash, YT, NDB. The unaffected portions of the existing route would remain as charted. The portion within Canada is excluded.

J-502: J-502 currently extends between Seattle, WA and Kotzebue, AK. The FAA proposes to remove the segment between the Intersection of Sisters Island 311° (M), 331° (T), and Whitehorse 189° (M), 207° (T) radials; and the Intersection of Northway 120° (M), 138° (T), and Gulkana 062° (M), 079° (T) radials. The unaffected portions of the existing route would remain as charted.

J-511: J-511 currently extends between Dillingham, AK and Burwash Landing, YT, Canada, NDB. The FAA proposes to remove the segment between Gulkana, AK; and the intersection of Gulkana 078° (M), 102° (T) radial; and Northway 137° (M), 161° (T) radial. The unaffected portions of the existing route would remain as charted.

Colored and Alaskan VOR Federal airways are published in paragraphs 6009 and 6010(b) and Jet routes are published in paragraph 2004, of FAA Order 7400.11D dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR part 71.1. The Federal airways listed in this document will be subsequently published in the Order.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

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

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

Invitation to Comment: We invite you to submit comments regarding these proposed priorities, requirements, definitions, and selection criteria. To ensure that your comments have maximum effect in developing the notice of final priorities, requirements, definitions, and selection criteria, we urge you to identify clearly the specific proposed priority, requirement, definition, or selection criterion that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 13371 and their overall requirement of reducing regulatory burden that might result from these proposed priorities, requirements, definitions, and selection criteria. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about these proposed priorities, requirements, definitions, and selection criteria at 400 Maryland Avenue SW, Washington, DC 20202 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 priorities, requirements, definitions, and selection criteria. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Purpose of Program: The PN program is authorized under the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA). The purpose of the PN program is to significantly improve the academic and developmental outcomes of children living in the most distressed communities of the United States, including ensuring school readiness, high school graduation, and access to a community-based continuum of high-quality services. The program serves neighborhoods with high concentrations of low-income individuals; multiple signs of distress, which may include high rates of poverty, childhood obesity, academic failure, and juvenile delinquency, adjudication, or incarceration; and schools implementing comprehensive support and improvement activities or targeted support and improvement activities under section 1111(d) of the ESEA. All strategies in the continuum of solutions must be accessible to children with disabilities and English learners.

Program Authority: 20 U.S.C. 7273-7274.

This document contains four proposed priorities.

Background: Beginning in 2010, and in the FY 2017 competition, the PN program used absolute priorities for rural, Tribal, and non-rural, non-Tribal applicants to create three different funding slates. Multiple funding slates created a level playing field for different applicants by allowing applicants with similar challenges and circumstances to compete against one another. The three absolute priorities resulted in a mix of rural, Tribal, and non-rural, non-Tribal grantees. Over the years, the PN program has awarded 54 grants to urban communities, 13 grants to rural communities, and 6 grants to Tribal communities. Without multiple slates there would have been much fewer rural and Tribal grants. Therefore, in this document the Department proposes to establish priorities for non-rural, non-Tribal and for Tribal communities under Proposed Priorities 1 and 2. The Secretary's Administrative Priorities (85 FR 13640), which are available for use in the PN program, already include a priority for rural applicants. In future competitions, separate slates will be utilized to determine rural, Tribal, and non-rural, non-Tribal grantees.)

Proposed Priority 1—Non-Rural and Non-Tribal Communities.

To meet this priority, an applicant must propose to implement a PN strategy that serves one or more non-rural or non-Tribal communities.

Proposed Priority 2—Tribal Communities.

To meet this priority, an applicant must propose to implement a PN strategy that serves one or more Indian Tribes (as defined in this notice).

Proposed Priority 3—Community-Level Opioid Abuse Prevention Efforts.

Background: In 2017, in response to the opioid crisis  1 plaguing many communities across the country, the Department created a priority for applicants that proposed to leverage other Federal resources available to fight opioid addiction. The Department awarded competitive preference points to applicants that demonstrated receipt of a Drug Free Communities (DFC) Support Program Grant from the Office of National Drug Policy to prevent opioid abuse (as one of its areas of focus) or a partnership with a DFC grantee as demonstrated by a memorandum of understanding. Of the 80 applications received in the 2017 competition, 40 applicants addressed this priority as a need in their communities and all applicants who received awards in 2017 addressed this priority. Funded grantees have leveraged these resources to provide direct support to families devastated by the opioid crisis through mental health support and drug prevention resources in schools where children are affected by this epidemic. Through Proposed Priority 3, the Department seeks to continue to address the opioid crisis in PN communities while also expanding the eligibility pool beyond projects supported with Federal resources.

Proposed Priority 3:

To meet this priority, an applicant must: (1) Demonstrate how it will partner with an organization that conducts high-quality, community-level activities to prevent opioid abuse, such as an organization supported by an Office of National Drug Control Policy, DFC Support Program grant, in PN communities; (2) describe the partner organization's record of success in approaching opioid abuse prevention at the community level; and (3) provide, in its application, a memorandum of understanding between it and the partner organization responsible for managing the effort. The memorandum of understanding must indicate a commitment on the part of the applicant to coordinate implementation and align resources to the greatest extent practicable.

Proposed Priority 4—Evidence-Based Activities to Support Academic Achievement.

Background: Over the last 10 years, PN grantees attempted to significantly improve the academic achievement of children served by providing supports external to classroom instruction. While most grantees achieved some success in improving the academic achievement of students in the neighborhoods served, other grantees experienced challenges due to external factors such as change of school administration, housing affordability, family mobility, and school or neighborhood safety issues. Although our grantees attempt to resolve these issues through partnerships, these issues take time to resolve individually and collectively. Grantees with success in supporting students' successful transition to the next grade level, and completion of postsecondary education attributed the success to providing evidence-based instructional and comprehensive service strategies.

Proposed Priority 4:

Projects that propose to use evidence-based (as defined in 34 CFR 77.1(c)) activities, strategies, or interventions that support teaching practices that will lead to increasing student achievement (as defined in this notice), graduation rates, and career readiness.

Proposed Priority 5—Community-Based Crime Reduction Efforts.

Background: In 2011, the Department responded to challenges many neighborhoods were facing with crime— and specifically its effects on school safety, chronic absenteeism, and juvenile delinquency—by establishing a priority for the PN program focused on crime reduction. Through ongoing collaboration with the Department of Justice (DOJ), the Department provided supplemental funding to organizations with PN and Byrne Criminal Justice Innovation grants to further enhance community-based crime prevention efforts. In 2017, recognizing these efforts could be expanded to the pool of applicants through the PN competition, the Department established a competitive preference priority to encourage ongoing collaboration between education and public safety efforts. Ultimately, we awarded two new grants to organizations partnering with a Byrne Criminal Justice Innovation grantee. These grantees have yielded results that have improved school safety and chronic absenteeism in their communities. In 2018, the DOJ renamed the Byrne Criminal Justice Innovation program to the Innovations in Community-Based Crime Reduction Program. Additionally, DOJ continues to implement the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person (FIRST STEP) initiative to support the re-entry of formerly incarcerated individuals into their communities. This proposed priority would allow us to support the connection of these important community-based public safety initiatives to PN communities by aligning education and public safety efforts.

Proposed Priority 5:

To meet this priority, an applicant must: (1) Demonstrate how it will partner with an organization that conducts high-quality activities focused on the re-entry of formerly incarcerated individuals or on community-based crime reduction activities, such as an organization supported by a U.S. Department of Justice (DOJ), Innovations in Community-Based Crime Reduction Program grant, a grant authorized under the Second Chance Act, as reauthorized under the. Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person (FIRST STEP) Act, or DOJ Office of Justice Programs competitive grants related to juvenile justice and delinquency prevention; (2) describe the partner organization's record of success with supporting the re-entry of formerly incarcerated individuals or community-based crime reduction and how their efforts will be coordinated with the PN activities of this grant; and (3) provide, in its application, a memorandum of understanding between it and a partner organization managing the effort. The memorandum of understanding must indicate a commitment on the part of the applicant to coordinate implementation and align resources to the greatest extent practicable.

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)).

Background: The Assistant Secretary proposes application requirements to be used in conjunction with those in section 4624(a) of the ESEA. In general, the Department believes, based on past experiences administering this program, that these proposed requirements are necessary for the proper consideration of applications and would increase the likelihood of successful projects. Through the years, the program has pushed the field to embrace data-driven efforts to improve outcomes from cradle to career at the population level. Key elements proposed in this document would help us to further target PN funds on interventions in school, college, and career settings.

In addition, through proposed enhanced application requirements the program seeks to better support applicants and grantees to report high-quality site-level data. PN grantees have improved significantly in this area over the past several years through our technical assistance efforts, and we believe that the proposed application requirements would further support the Department's and grantees' ability to make data-informed decisions. The program seeks to clarify and enhance the statutory definitions and selection criteria to coincide with improvements to the overall purpose and structure of the PN program.

The proposed application requirements are intended to: (1) Assist applicants with clearly demonstrating the need for the project and proposed solutions (activities, strategies, and interventions) specific to the neighborhood's need; (2) acknowledge the critical role and direct, ongoing involvement that local educational agencies (LEAs) and schools should have in identifying and implementing solutions, especially those specific to improving academic outcomes; (3) ensure that an applicant has a preexisting presence, as demonstrated by the applicant's past history providing programs and services, in the neighborhood to be served and is representative of that neighborhood; and (4) ensure that an applicant will design its project to prepare and empower families to be active in choosing the educational and other supports that best meet the needs of students in the community. We believe the proposed requirements would not only improve the application and review process but also improve program outcomes.

The Assistant Secretary proposes the following application requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect.

Proposed Application Requirements: To be considered for an award under this competition, an applicant must provide the following—

(1) In addressing the application requirements in sections 4624(a)(4),(5), and (7) of the ESEA, an applicant must clearly demonstrate needs, including, a segmentation analysis, gaps in services, and any available data from within the last 3 years to demonstrate needs. The applicant should also describe proposed activities that address these needs and the extent to which these activities are evidence-based (as defined in 34 CFR 77.1(c). The applicant should also describe their, or partner organizations if applicable, experience providing these activities including any data demonstrating effectiveness.

(2) In addressing the requirement in section 4624(a)(6) of the ESEA, an applicant must provide a description of the process used to develop the application, which must include the involvement of an LEA(s) (including but not limited to the LEA's or LEAs' involvement in the creation and planning of the application and a signed Memorandum of Understanding) and at least one public elementary or secondary school that is located within the identified geographic area that the grant will serve.

(3) An applicant must demonstrate that its proposed project—

(a) Is representative of the geographic area proposed to be served (as defined in this notice); and

(b) Would provide a majority of the solutions from the applicant's proposed pipeline services in the geographic area proposed to be served.

(4) In addressing the requirement in section 4624(a)(9) of the ESEA, an applicant must describe the process it will use to establish and maintain a family navigation system (as defined in this notice), including an explanation of the process the applicant will use to establish and maintain family and community engagement.

The Assistant Secretary proposes the following definitions for this program. We may apply one or more of these definitions in any year in which this program is in effect.

Background: To ensure a common understanding of the proposed priorities, requirements, and selection criteria, we propose definitions that are critical to the statutory and policy purposes of the PN program. We propose these definitions in order to clarify expectations for applicants for PN program grants and to ensure that the review process for applications for PN grants remains as transparent as possible.

Family navigation system means a service delivery model that includes coordinators who teach, mentor, and collaborate with students and their families, as well as community members, to choose interventions, treatments, or solutions provided by the grantee and that best meet the needs of students and their families. Students and their families can select services and supports based on available services and individual needs, as well as advocate for additional services.

Graduation rate means the four-year adjusted cohort graduation rate or extended-year adjusted cohort graduation rate as defined in section 8101(25) and (23) of the ESEA.

Indian Tribe means an Indian Tribe or Tribal Organization as defined in section 4 of the Indian Self-determination Act (25 U.S. 450b).

Indicators of need means currently available data that describe—

(a) Education need, which means—

(1) All or a portion of the neighborhood includes or is within the attendance zone of a low-performing school that is a high school, especially one in which the graduation rate (as defined in this notice) is less than 60 percent or a school that can be characterized as low-performing based on another proxy indicator, such as students' on-time progression from grade to grade; and

(2) Other indicators, such as significant achievement gaps between subgroups of students (as identified in section 1111(b)(2)(B)(xi) of the ESEA), within a school or LEA, high teacher and principal turnover, or high student absenteeism; and

(b) Family and community support need, which means—

(1) Percentages of children with preventable chronic health conditions ( e.g., asthma, poor nutrition, dental problems, obesity) or avoidable developmental delays;

(2) Immunization rates;

(3) Rates of crime, including violent crime;

(4) Student mobility rates;

(5) Teenage birth rates;

(6) Percentage of children in single parent or no-parent families;

(7) Rates of vacant or substandard homes, including distressed public and assisted housing; or

(8) Percentage of the residents living at or below the Federal poverty threshold.

Regular high school diploma has the meaning set out in section 8101(43) of the ESEA.

Representative of the geographic area proposed to be served means that residents of the geographic area proposed to be served have an active role in decision-making and that at least one-third of the applicant's governing board or advisory board is made up of—

(a) Residents who live in the geographic area proposed to be served, which may include residents who are representative of the ethnic and racial composition of the neighborhood's residents and the languages they speak;

(b) Residents of the city or county in which the neighborhood is located but who live outside the geographic area proposed to be served, and who earn less than 80 percent of the area's median income as published by the U.S. Department of Housing and Urban Development;

(c) Public officials who serve the geographic area proposed to be served (although not more than one-half of the governing board or advisory board may be made up of public officials); or

(d) Some combination of individuals from the three groups listed in paragraphs (a), (b), and (c) of this definition.

Segmentation analysis means the process of grouping and analyzing data from children and families in the geographic area proposed to be served according to indicators of need or other relevant indicators to allow grantees to differentiate and more effectively target interventions based on the needs of different populations in the geographic area.

Student achievement means—

(a) For tested grades and subjects—

(1) A student's score on the State's assessments under the ESEA; and

(2) As appropriate, other measures of student learning, such as those described in paragraph (b) of this definition, provided they are rigorous and comparable across classrooms and programs; and

(b) For non-tested grades and subjects, alternative measures of student learning and performance, such as student scores on pre-tests and end-of-course tests; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across classrooms.

Student mobility rate is calculated by dividing the total number of new student entries and withdrawals at a school, from the day after the first official enrollment number is collected through the end of the academic year, by the first official enrollment number of the academic year.

Background: The Department has held six PN competitions since 2010. Our experience with administering these competitions, including feedback from peer reviewers, applicants, funded grantees, and experts, demonstrates the need to use program-specific selection criteria to evaluate specific program elements. We propose to modify two general Education Department General Administrative Regulations selection criteria—Need for Project and Quality of Project Design—to encourage applicants to fully address gaps and weaknesses in the full pipeline of solutions from cradle through college and a career.

Under Need for Project, the Department proposes to add a program-specific emphasis on the applicant's proposed pipeline of solutions. The Department recognized in past grant competitions that applicants were not connecting the identified gaps and weaknesses to the full pipeline of solutions. The Department considers it important for applicants to address and align the needs identified with the full pipeline of solutions.

Also, under Quality of Project Design, the Department proposes to encourage applicants to discuss college or career and technical education training completion in addition to college and career readiness. Over the years, the Department has noticed that many applicants and funded grantees tend to end services prior to students in the community entering college or the workforce. The Department deems it important to ensure that services and supports are offered to program participants beyond high school completion.

The Assistant Secretary proposes the following selection criteria for evaluating an application under this program. We may apply one or more of these criteria in any year in which this program is in effect.

(a) Need for project. In determining the need for the proposed project, the Secretary considers one or more of the following factors—

(1) The magnitude or severity of the problems to be addressed by the proposed project as described by indicators of need and other relevant indicators identified in part by the needs assessment and segmentation analysis; and

(2) The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including—

(i) The nature and magnitude of those gaps or weaknesses; and

(ii) A pipeline of solutions addressing the identified gaps and weaknesses, including solutions targeted to early childhood, K-12, family and community supports, and college and career.

(b) Quality of project design. In determining the quality of project design for the proposed project, the Secretary considers one or more of the following factors—

(1) The extent to which the applicant describes a plan to create a complete pipeline of services, without time and resource gaps, that is designed to prepare all children in the neighborhood to attain a high-quality education and successfully transition to college and a career;

(2) The extent to which the project will significantly increase the proportion of students in the neighborhood that are served by the complete continuum of high-quality services; and

(3) The extent to which the proposed family navigation system is high quality and provides students and their families sufficient services and supports based on available services and individual needs.

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

Note: This notice does not solicit applications. In any year in which we choose to use these priorities, requirements, definitions, and selection criteria, 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 not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

Under Executive Order 13771, for each new regulation 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 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because the proposed regulations are not a significant regulatory action, the requirements of Executive Order 13771 do not apply.

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 the proposed priorities, requirements, definitions, and selection criteria only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. 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 benefits include enhancing project design and quality of services to better prepare grantees to meet the objectives of the programs.

Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make the proposed priorities, requirements, definitions, and selection criteria easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed regulations clearly stated?

• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?

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

• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections?

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

• What else could we do to make the proposed regulations easier to understand?

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 Size Standards define “small entities” as for-profit or nonprofit institutions with total annual revenue below $7,000,000 or, if they are institutions controlled by small governmental jurisdictions (that are comprised of cities, counties, towns, townships, villages, school districts, or special districts), with a population of less than 50,000.

The small entities that this proposed regulatory action would affect are State educational agencies; LEAs, including charter schools that operate as LEAs under State law; institutions of higher education; other public agencies; private nonprofit organizations; freely associated States and outlying areas; Indian Tribes or Tribal organizations; and for-profit organizations. We believe that the costs imposed on an applicant by the proposed priorities, requirements, definitions, and selection criteria would be limited to paperwork burden related to preparing an application and that the benefits of the proposed priorities, requirements, definitions, and selection criteria would outweigh any costs incurred by the applicant.

Participation in the PN program is voluntary. For this reason, the proposed priorities, requirements, definitions, and selection criteria would impose no burden on small entities unless they applied for funding under the program. We expect that in determining whether to apply for PN program funds, an applicant would evaluate the requirements of preparing an application and any associated costs, and weigh them against the benefits likely to be achieved by receiving a PN program grant. An applicant would probably apply only if it determines that the likely benefits exceed the costs of preparing an application.

We believe that the proposed priorities, requirements, definitions, and selection criteria would not impose any additional burden on a small entity applying for a grant than the entity would face in the absence of the proposed action. That is, the length of the applications those entities would submit in the absence of the proposed regulatory action and the time needed to prepare an application would likely be the same.

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

The proposed priorities, requirements, definitions, and selection criteria contain information collection requirements that are approved by OMB under OMB control number 1894-0006; the proposed priorities, requirements, definitions, and selection criteria do not affect the currently approved data collection.

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

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

In accordance with section 411 of General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.

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 Adobe 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.

Section 407 of title 17 requires that the owner of the copyright or the exclusive right of publication in a work published in the United States, within three months of publication, deposit “two complete copies of the best edition” with the Copyright Office “for the use or disposition of the Library of Congress.”  1 The “best edition” is defined as “the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.”  2 These requirements are governed by section 202.19 and Appendix B of part 202 of the Office's regulations, which set forth rules and criteria, respectively, for the different types of works subject to the mandatory deposit requirement.

Under the statute, the Register of Copyrights may issue a written demand for works at any time after they have been published in the United States, and failure to deposit after a demand may subject the recipient to monetary liability. 3 Compliance with this section is separate from the copyright registration process, but the Copyright Act provides that deposits made under section 407 may be used to satisfy the registration deposit provisions under section 408, if all other registration conditions are met. 4

Certain categories of works are not subject to mandatory deposit. As set out in the statute, unpublished works and foreign works that have not been published in any form in the United States do not have to be deposited. In addition, under section 407(c), the Register can, by regulation, exempt any categories of material from section 407's mandatory deposit requirements or demand only one copy to provide a “satisfactory archival record of a work.” Under this authority, the Register has excluded numerous categories of works from the mandatory deposit requirement, such as greeting cards, architectural blueprints, and three-dimensional sculptural works. 5

In 2010, the Office issued an interim rule (the “2010 Interim Rule”) codifying its established practice of excluding from mandatory deposit requirements all “[e]lectronic works published in the United States and available only online.”  6 The 2010 Interim Rule referred to such works as “electronic-only.” In generally excluding electronic-only works from the mandatory deposit requirement, the Office also, however, adopted an exception to this exemption, requiring the deposit of electronic-only serials if affirmatively demanded by the Office. 7 An electronic-only serial is “an electronic work published in the United States and available only online, issued or intended to be issued on an established schedule in successive parts bearing numerical or chronological designations, without subsequent alterations, and intended to be continued indefinitely.”  8 This category includes “periodicals, newspapers, annuals, and the journals, proceedings, transactions, and other publications of societies.”  9 The 2010 Interim Rule stated that any additional categories of electronic-only works would first be “identified as being subject to demand” through a rulemaking with notice and comment before the Office issues any actual demands for such works. 10 The present proposed rule is one such rulemaking.

In 2016, the Office issued a notice of inquiry (“NOI”) that proposed to finalize the 2010 interim rule and to add a new category of online works—electronic-only books—to the demand-based mandatory deposit scheme. 11 The Office sought comments on four topics: (1) The efficacy of the interim rule, including whether it adequately serves the needs of the Library and other affected parties and whether it could serve as a good framework for adding additional categories of electronic works to the mandatory deposit system; (2) the Library's access policy as applied to both electronic-only serials and, potentially, to electronic-only books; (3) “information technology, security, and/or other requirements” that should apply to the receipt and storage of, and access to, electronic-only books; and (4) how the “best edition” requirements should be applied to the mandatory deposit of electronic-only books. The Office received fifteen comments on the proposed changes. While some of the comments praised the efforts to collect more works in the identified categories, others expressed reservations.

In April 2018, the Office issued a notice of proposed rulemaking (“2018 NPRM”) seeking public comment on a proposal to finalize the interim rule and to extend the demand-based mandatory deposit requirements to electronic-only books. 12 The 2018 NPRM proposed that the term “electronic-only book” be “defined broadly as an electronic literary work published in one volume or a finite number of volumes published in the United States and available only online,” with some exclusions for specific types of works such as serials, audiobooks, websites, blogs, and emails. 13 To clarify how the rule would apply in the context of books available for print-on-demand, the definition provided that a work would be deemed available only online “even if physical copies or phonorecords have been made on demand for individual consumers, so long as the work is otherwise available only online.”  14

The 2018 NPRM also addressed questions raised by commenters regarding Library access policies and information technology requirements. The Office proposed to modify existing regulations to apply the same access policies to deposited electronic-only books as those applicable to electronic deposits of newspapers: Access would be provided only to authorized users on Library of Congress premises and off-site to Library staff as part of their assigned duties via a secure connection. 15 In response to comments expressing concern about the adequacy of the Library's technology security infrastructure, the 2018 NPRM provided information on the recent steps taken by the Library to address its information technology needs, including the appointment of a permanent Chief Information Officer, the implementation of security standards, and the use of comprehensive security testing for all Library systems. 16

Finally, the proposed rule established “best edition” requirements for electronic-only books, adopting provisions from the Library's Recommended Formats Statement with some clarifying language regarding the “completeness” of a work. 17 These provisions also included a requirement that depositors remove technological measures that control access to or use of the work, as is currently required for electronic-only serials. 18

The Office received nine comments in response to the 2018 NPRM. Commenters generally expressed agreement with the broad goal of supporting the Library's acquisition and preservation of digital materials for the benefit of the American public. The Library Copyright Alliance supported the proposed rule “because of the critical role of deposit in building the Library's collection and ensuring long-term preservation” of digital materials. 19 Authors Guild similarly noted that the Library “cannot fulfill [its] mission today without collecting books that are published only in electronic form,”  20 and the Association of American Publishers stated “[p]ublishers have long supported the special privilege of the Library to collect works” through mandatory deposit. 21 Authors Alliance supported the rule because, in its view, mandatory deposit “serve[s] the long-term interests of authors by ensuring that their creative and intellectual legacies are preserved.”  22

At the same time, the comments revealed significant concern over several aspects of the proposed rule. A number of commenters requested clarification of the rule's intended scope, pointing to ambiguity in the definition of the term “electronic-only book” and uncertainty as to the collections policies that would govern acquisition decisions. 23 Commenters also raised questions regarding the security of digital materials deposited pursuant to the rule. Some commenters urged the Office to provide additional assurances as to the adequacy of the Library's digital security practices, 24 while others objected to the proposed requirement that deposited materials be free of technological protection measures. 25

The Office has carefully considered these comments and finds that they have helpfully identified several areas that would benefit from further discussion or explanation. In response to certain issues raised by commenters, the Office has made revisions to the proposed regulatory text. In addition, to further demonstrate the basis for the proposed rule, the Office is providing additional information in response to commenters' questions regarding Library collections and security policies, including to share relevant developments that occurred after the close of the initial comment period. 26 The Office addresses each of these issues below and welcomes additional public comment. In light of the existing rulemaking record and, as noted below, the progress the Library has reported to the Office in response to the 2018 NPRM, the Office anticipates being able to reasonably move forward with finalization of the proposed rule after this round of comments.

The 2018 proposed rule defined an “electronic-only book” as “an electronic literary work published in one volume or a finite number of volumes published in the United States and available only online.”  27 It specifically excluded “literary works distributed solely in phonorecords ( e.g., audiobooks), serials (as defined in § 202.3(b)(1)(v)), computer programs, websites, blogs, and emails.”  28 A number of comments raised questions about the scope of materials that would be subject to mandatory deposit under this definition.

First, the National Writers Union (NWU) found certain terminology in the proposed rule ambiguous. It noted that “[t]he term `volume,' as applied to digital data, is normally used to describe a physical or virtual drive, storage device, partition, or filesystem, which can contain any number of related or unrelated files.”  29 NWU therefore believed the rule was unclear as to “which digital files or groups of files the Copyright Office considers or will deem to constitute `volumes.' ”  30 Additionally, NWU expressed confusion over the exclusion of “websites” and “email” from the definition, noting that “[m]ost works distributed in electronic formats are distributed either as files downloadable from the World Wide Web— i.e., as part of websites—or by email.”  31 Based on this interpretation, NWU reads the proposed rule to exclude, for example, all e-book files released for the Amazon Kindle because those files “can be downloaded . . . through the Amazon.com website” and thus are “part of websites.”  32

After consideration of NWU's comments, the Office does not agree that the cited provisions are likely to cause confusion. When read in context, the term “volume” cannot plausibly be understood to describe a physical or digital drive that stores data. Rather, the regulatory text makes clear that the term carries its ordinary meaning as a unit in which a “literary work” is published. 33 The language simply indicates that, for purposes of defining an “electronic-only book,” it is immaterial whether a work is published in one file or is broken into multiple files. Nor does the Office find NWU's interpretation of “websites” to be a reasonable reading. The fact that copies of a work are distributed via a website does not mean the work is part of the website. Moreover, excluding such books would be at odds with both the purpose of the rule and Copyright Office practice. As the NOI explained, this proceeding is intended to facilitate collection of “electronic books that have been published solely through online channels,”  34 which certainly would include books distributed through major platforms such as Amazon. Further, the Compendium of U.S. Copyright Office Practices provides that a “work that is perceptible to the user only by downloading or separately purchasing that particular work is not considered part of the website for registration purposes and must be registered separately.”  35

Second, the Authors Guild noted that the proposed regulatory language did not address the length of works subject to the rule even though “books are generally defined as longer literary works.”  36 It recommended modifying the rule to clarify that “very short works, such as a single poem or a string of tweets,” are not covered. 37

Although the 2018 NPRM noted that the Library “does not intend to obtain blog posts, social media posts, and general web pages” through this rule, 38 the Office agrees that that limitation could be made clearer in the regulatory text itself. The Office therefore proposes revising the definitional language to expressly exclude “short online literary works such as social media posts.” The Office considered the possibility of adopting a longer and more detailed list of exclusions but ultimately concluded that such an approach would be infeasible given the speed at which new online services emerge. Moreover, any attempt to further limit the subclasses of literary works subject to the rule could result in the exclusion of certain works that fall within the rule's intended scope. For example, excluding “poems” would not be advisable, as some poems are long enough to constitute a book ( e.g., Paradise Lost ). As noted in the 2018 NPRM, the Office recognizes that the traditional definition of a physical book “does not translate neatly to the digital environment” and that distinguishing “electronic-only books” from other types of online literary works may be difficult in certain cases at the margins. 39 Nevertheless, the Office continues to believe that the overall definitional approach set forth in the 2018 NPRM strikes an appropriate balance between ensuring that the Library retains sufficient flexibility in its acquisition decisions, and making clear that rule's intended focus is on “textual works that are marketed or presented as `electronic books' and other monographic works such as organizational reports and long-form essays”—and not on blogs, social media posts, websites, and the like. 40 The additional language proposed here further clarifies this distinction.

Third, the Authors Guild suggested that the proposed definition is underinclusive because the phrase “available only online” might not encompass electronic books distributed offline, such as books preloaded onto e-readers or tablets. 41 The Authors Guild proposed instead that references to a work being “available only online” be replaced with “available in electronic form.”  42 The Office agrees that works of this type should be covered by the rule, but the language proposed by the Authors Guild potentially could sweep in electronic works that are also published in physical form. The Office believes that a more targeted solution is to address this situation in the section of the rule defining when a work is considered to be available only online. The revised proposed rule adds language to that definition providing that a work shall be deemed to be available only online “even if copies have been loaded onto electronic devices, such as tablets or e-readers, in advance of sale to individual consumers, so long as the work is otherwise available only online.”

Fourth, AAP raised questions about the rule's requirement that “[a]ll updates, supplements, releases, and supersessions” of the work be deposited in a timely manner. AAP requested that the Office define the terms “updates, supplements, releases, and supersessions” and sought clarification as how the Office would treat books available in print whose digital editions contain additional content or revisions. 43 After consideration, the Office does not believe modification of the regulatory text is necessary. The language regarding updates and similar material is analogous to a longstanding requirement in the best edition regulations for printed textual matter, which require “the regular and timely receipt of all appropriate looseleaf updates, supplements, and releases.”  44 The deposit requirement for updates to electronic-only books will be administered in the same manner that publishers are accustomed to for printed material. Nor is revision required to accommodate books available in print with additional content in a digital version. Where a work is available in both digital and print editions, the work is not “available only online,” and thus is not subject to the rule. To the extent the digital version contains supplementary material that is not published in the physical version, the electronically enhanced version would be subject to demand if it constitutes a separate “work” under the Copyright Act and is not otherwise excluded from the rule.

Fifth, the Office has determined that the rule should be revised to further clarify when print-on-demand books are to be deemed “available only online.” The original proposed rule provided that “[a] work shall be deemed to be available only online even if physical copies have been made on demand for individual consumers, so long as the work is otherwise available only online.”  45 The Office proposed that definition to address commenters' concern that, in the case of books made available for printing by individual consumers, “it [would] be difficult for publishers to determine whether such works are subject to the general exemption for electronic-only works (and the demand-based mandatory deposit scheme proposed here), or whether they are subject to affirmative mandatory deposit requirements.”  46 The 2018 NPRM thus contemplated that a work would qualify as an e-book under the rule even if copies were “printed privately, in consumers' homes, or at kiosks at brick-and-mortar bookstores.”  47

That situation, however, is distinguishable from a business model in which an author, publisher, or distributor prints copies in response to purchases by individual consumers. For example, a physical or online retailer might place orders for printed copies of a particular title only as individual requests for that title are received from customers, as opposed to ordering multiple copies from the publisher in advance of any customer purchases. These books are outside the scope of this rule, and instead remain subject to the general mandatory deposit obligation under section 407. In circumstances where a retailer provides a physical copy for sale, it is immaterial to the purchaser—and likely unknown to acquisition specialists at the Copyright Office—whether the retailer has multiple copies on hand or obtains them individually to fulfill purchases as they occur. To make this distinction clear, the Office has amended the proposed rule to more precisely refer to books made available for on-demand printing by individual consumers, as distinguished from on-demand activities performed by distributors, publishers, retailers, or others in the supply chain. The revised language provides: “A work shall be deemed to be available only online even if copies have been made available to individual consumers to print on demand, so long as the work is otherwise available only online.”  48

In discussing the scope of materials subject to deposit under this rule, a number of commenters sought additional information about the Library of Congress's specific collections policies. As the AAP put it, “[i]n providing for the transfer of said copies through mandatory deposit, Congress made clear that the Library must make demands under Section 407 with a purpose.”  49 The NWU stated that it “remain[ed] puzzled as to what works the Copyright Office intends to demand be deposited” under the proposed rule, 50 and the Authors Guild desired to see a “comprehensive collection strategy” from the Library before finalization of a rule. 51 The Copyright Alliance expressed concern that there was a “lack of a clear and cohesive digital collections strategy within the Library of Congress” and requested the opportunity to give input into that strategy. 52 And with respect to collection and preservation of digital materials specifically, the Authors' Guild explained, “[i]t is our understanding that the Library has not yet created and adopted a comprehensive strategy for safely storing books published in electronic form, despite the fact that e-books and electronic audio books have been a significant and growing percentage of books published for over a decade.”  53

As the 2018 NPRM indicates, the Copyright Office consults with the Library and relies on those discussions along with the Library's public statements in considering and responding to commenters' concerns in this area. 54 According to the Library, the criteria used to determine what electronic materials to acquire “do not greatly differ from those used for other formats.”  55 The Library prepares subject-specific Collections Policy Statements ( e.g., Education, Chemical Sciences, Medicine, Theater) and makes them available on its website. 56 These policies detail what kinds of works the Library seeks to collect and at what level of comprehensiveness. For example, the Political Science statement notes that the Library seeks to “collect[ ] all the important current reference works” in the field, regardless of language, while it collects foreign textbooks “on a highly selective basis.”  57 The Library also maintains supplementary guidelines to assist in applying these standards to electronic works. 58 For example, the guidelines note that criteria weighing in favor of acquisition include the at-risk nature of a work or its availability only in digital format. 59 In general, however, the Office understands that Library acquisition decisions involving electronic materials are governed by the relevant Collections Policy Statement, as is true for works in physical format. 60 As the Library's Collection Development Office has explained, this policy reflects the Library's effort to develop “one interdependent collection that contains both its traditional physical holdings and materials in digital formats.”  61

With respect to commenters' concerns about the Library's digital strategy, 62 the Library has provided further public information following the close of the comment period, most notably in its five-year strategic plan and in a formal digital strategy document that supports the strategic plan. The 2019-2023 strategic plan, Enriching the User Experience, notes that “being digitally enabled is paramount to [the Library of Congress's] success.”  63 Describing digital efforts as an “ongoing process,” the plan states that in the next five years the Library will streamline its operational capabilities and undertake efforts to identify gaps in expertise and recruit new talent to fill those gaps. 64 The Library's digital strategy, published in April 2019, describes a five-year plan for expanding its digital collections and providing access to that material, in connection with the Library's broad goals of “throwing open the treasure chest, connecting, and investing in our future.”  65 It notes that the Library intends to “exponentially” expand its digital collections, provide “maximum authorized access” to material in the collection depending on the type of patron, and use “verifiable chain of custody” to ensure the authenticity of digital material and prevent digital deterioration. 66

The Library also has worked to implement the recommendation made in an April 2015 report by its Inspector General (“OIG”) on these issues. 67 In March 2018, the OIG noted that the Library had made progress toward creating “an overarching, transformative eCollections Strategy for collecting electronic works” by aligning all electronic collection under a single Digital Collecting Plan. 68 A subsequent OIG report noted that the Library has provided evidence of its efforts toward closing this recommendation, including “current Library of Congress Collections Policy Statements, which include digital content and proof that digital collecting is part of overarching Library collections strategies.”  69 The report further noted that the Library and OIG met in September 2019 to discuss next steps to achieve closure of the remaining e-deposit and e-collections recommendations. 70

The Office interprets this additional information to further clarify that the Library's plans to increase its digital collection do not reflect a shift in the content-based considerations underlying its collections policies. Rather, the Office understands that the Library's digital collections policies are substantively the same as its policies for physical works, and so an expansion of the mandatory deposit rule to electronic-only books would not significantly change the nature of the Library's collections activity.

The 2018 proposed rule provided that “technological measures that control access to or use of the work should be removed.”  71 In support of that requirement, the 2018 NPRM noted that while technological protection measures (“TPM”s) “provide significant security assurances, . . . encumbering deposited copies with such protections would conflict with the Library's purposes of preserving the works.”  72 This requirement was adopted for electronic serials in the 2010 interim rule  73 and, to the Office's knowledge, has functioned without issue for those deposits.

Some commenters objected to extending this requirement to electronic-only books. For example, the Authors Guild expressed concern that in some instances, the only published edition of a book may be one employing technological protection measures, and that requiring removal would force some publishers to “transfer the files to new formats or use hacking codes to remove the controls.”  74 This would “not only put[ ] the author's work at risk of piracy, but [would] put[ ] an unnecessary burden on publishers, especially on authors who independently publish and small publishers.”  75 The Copyright Alliance pointed to this requirement as heightening concerns about the Library's IT security system, arguing that the possession of unencrypted digital works greatly increases the potential harm if the Library's storage system were ever breached. 76

For the reasons noted in the 2018 NPRM, the Library generally prefers TPM-free editions of works to simplify and further its preservation efforts. 77 At the same time, the 2018 NPRM noted that the statutory deposit requirement is limited to the best published edition and “does not require the publisher or producer to create a special preservation copy simply for the benefit of the Library of Congress.”  78 To appropriately balance these considerations, and to respond to commenters' concerns, the revised proposed rule removes the requirement that TPMs be removed from deposit copies, but updates the Best Edition regulations in Appendix B to Part 202 to reflect the Library's preference for a TPM-free edition, if such a version has been published. That is, where a publisher has published both TPM-protected and non-TPM-protected versions of an e-book, the best edition for purposes of this rule is the latter. In accordance with the general approach of Appendix B to provide alternate options in descending orders of preference, where an electronic-only book is not published TPM-free, the proposed rule would next accept a copy for which the owner has elected to remove such technological measures.

It is important to note, however, that under section 202.24, the Office's regulations already provide that deposits “must be able to be accessed and reviewed by the Copyright Office, Library of Congress, and the Library's authorized users on an ongoing basis.”  79 Such language is consistent with section 407 of the Copyright Act, which obligates deposit of materials for “use or disposition of the Library of Congress” in its collections. 80 So as a floor, the proposed rule clarifies that deposits must be otherwise provided in a manner that meets the requirements of current section 202.24(a)(4). In sum, depositors must take reasonable steps to ensure that the Library is able to access the work to the extent necessary for preservation and other lawful uses. 81 In the case of a TPM-protected work, such efforts might include providing the same access codes that are available to purchasing consumers. And as explained in the NPRM, “in the unlikely event that the Library seeks to acquire a work that is only published in a proprietary format that cannot be viewed by the Library, the Office will work with the publisher to identify a means to access the work.”  82

Several comments were directed not at the specific regulatory text in the proposed rule but instead at the Library's IT security practices and the ability of the Library to secure electronic deposits from digital theft. The 2018 NPRM briefly discussed the Library's work in this area, 83 but in light of the level of concern expressed by commenters, and because of important developments that have occurred since the close of the prior comment period, the Office is providing additional information shared by the Library that speaks to these issues.

Many commenters from organizations representing copyright owners were reluctant to support the proposed rule without additional assurances regarding the Library's security capabilities. The Authors Guild stated that it was “premature” to finalize a rule until the Library could “ensure[ ]” the security of e-books, and requested that a full security plan be explained and “vetted with publishers.”  84 The Copyright Alliance requested that the Library “demonstrat[e] the adequacy of the Library's IT system” before finalizing a rule, lest the Office “put[ ] the cart before the horse” in demanding “blind faith” from copyright owners that the Library will protect deposits. 85 And AAP said it would be “premature” and “nothing short of reckless” to issue a final rule before implementation of the recommendations of the Government Accountability Office (“GAO”) in its 2015 report on the Library's IT management. 86

The Copyright Office appreciates concerns about the security of digital deposits and agrees that the Office and Library occupy a position of public trust with respect to copyright deposits. It is incumbent on both organizations to operate in accordance with that trust. As the Library has stated in its digital strategy, “[p]romoting creativity and building cultural heritage collections entails protecting creators' intellectual property rights. This responsibility is salient at the Library, as the home of the United States Copyright Office.”  87 After consultation with the Library, the Office is sharing additional information provided to it that discusses the significant effort the Library has undertaken to revamp its IT operations and ensure the integrity of its electronic deposits and other digital material in its collections.

As an initial matter, the Library has provided assurances of its commitment to digital security, both in public statements and in consultations with the Office. As the Library's Chief Information Officer testified to Congress in December 2019, “the Library is well aware of the need to ensure the security of the digital content in [its] care.”  88 He also has testified that the Library is implementing encryption for electronic copyright deposits, putting such materials on the same footing as other sensitive Library data. 89 Likewise, the Library has informed the Office that electronic deposits are given the same level of security as other highly sensitive information held by the Library, such as congressional material. According to the Library, this material is stored on a network that complies with the security standards established by the National Institute of Standards and Technology (“NIST”), 90 including standards SP 800-53 Rev. 4  91 and FIPS 140-2, 92 among others. NIST creates these security standards as required by the Federal Information Security Management Act, 93 which seeks to ensure that federal agencies “incorporate adequate, risk-based, and cost-effective security compatible with business processes.”  94 Through its systems, the Library has received tens of millions of digital files in the last decade, including over 300,000 electronic serial issues and 460,000 electronic books received under the interim rule or pursuant to special relief agreements with publishers. As the Library has reported to the Copyright Office, in no known instance has the Library's security been breached or its digital collections stolen.

Since the 2018 NPRM was published, the Library has provided additional detail on its IT security policies in several recent public statements, including congressional testimony. The Library's Chief Information Officer recently testified that the Library has “significantly increased our IT security posture over the last few years. We have implemented NIST security standards, with role based security, to ensure that users only have access to the data they are supposed to see.”  95 He further noted that the Library regularly conducts penetration tests of its high value assets and “are implementing encryption—at-rest and in-motion—for all sensitive Library data, including e-deposits.”  96 Noting that “[s]ecurity is always a top priority for all Library IT,” he further stated that the Library employs cybersecurity professionals to proactively monitor, test, and oversee security of the Library's systems. 97

The Librarian has similarly testified that the Library had made “significant IT security improvements” and cybersecurity enhancements “to heighten the detection of threats, thwart denial of service attacks, protect against malware and enable continuous monitoring so that issues are prevented, and if they occur, quickly identified and resolved.”  98 Other improvements highlighted by the Library include requiring all staff to use multi-factor authentication to access the Library's systems, 99 upgrading the Library to a new data center that reduces the risk of service interruptions, 100 and participating in the Legislative Branch Cyber Security Working Group, which facilitates the exchange of expertise and coordination in response to security threats. 101

More generally, the Library has sought to provide greater coordination by centralizing all IT efforts under the direction of the Office of the Chief Information Officer (“OCIO”). As the Librarian has explained, centralization was completed in October 2018 (after the close of the comment period), and now OCIO serves as the “single authoritative source for technology” at the Library. 102 The Library has stated that it views IT centralization as key to enabling more efficient use of IT resources and improving IT security. 103

In addition, in late 2019 the Library launched a Digital Collections Management Compendium (“DCMC”), an online resource that collects the Library's policies and practices for management of its digital collections. 104 The DCMC is intended to “broadly explain the Library's practices for managing digital content for the public.”  105 It includes information about how the Library keeps inventory and tracks use of digital material, who is responsible for the security of digital collections, and what policies govern user permissions and periodic reviews of staff accounts. 106 For example, its guidance for digital collections security for stored digital content states:

The DCMC also sets out a set of principles to be followed by the Library in providing access to digital collections that are supplementary to the regulatory restrictions established in 37 CFR 202.18, including “communicat[ing] known restrictions” on digital works to patrons and requiring patrons seeking use of digital items to “mak[e] independent legal assessments and secur[e] necessary permissions.”  108

The Library's security efforts are bolstered by oversight from the OIG, which issues public reports detailing the Library's progress. For example, the OIG's March 2019 semiannual report to Congress noted that the Library uses Security Information and Event Management (“SIEM”) functionality for “robust continuous monitoring capabilities and ongoing insight into IT security control effectiveness.”  109 The OIG noted that it had engaged an IT contractor to evaluate the Library's “SIEM implementation strategy and execution, internal controls, configuration, and incident detection response,” and that the Library agreed with all of the resulting recommendations. 110 OIG also monitors the Library's security practices in connection with its April 2015 report, which recommended that the Library, in developing a comprehensive policy for digital collections, ensure that electronic collections material be protected by “robust security” to prevent “loss, alteration, and unauthorized access”  111 The OIG's March 2018 report stated that “the Library's IT Security Program and Systems Development Lifecycle addresses the need for robust security.”  112

Further, the Library has announced significant strides toward full implementation of the GAO's 2015 recommendations. 113 Some commenters requested that the Office wait to issue a final rule until the GAO's thirty-one public recommendations had been implemented. 114 In late 2019, the Librarian reported to Congress that all but four of the public recommendations have been implemented and closed, and that the GAO is reviewing the Library's evidence for closing the final six (two of which are not public). 115 Moreover, three of the four remaining public recommendations do not directly implicate security, instead involving the adoption of organizational plans for cost estimates, project scheduling, and customer satisfaction. 116 The final outstanding public recommendation, No. 22, calls for comprehensive and effective security testing. 117 In response, the Library advised the GAO that it has conducted monthly tests since August 2015, and in November 2019 the Library provided the GAO with security control assessments for select systems. 118 The Library has advised Congress that it expects to achieve closure of these outstanding recommendations within the next several months. 119

While the Office appreciates commenters' interest in full implementation of the GAO's recommendations, it does not appear that the few remaining open items provide a basis for further delaying issuance of the proposed rule, particularly given the Library's overall efforts with respect to IT security since 2018. Collectively, those efforts support the Library's statement that it has “invested heavily in the optimization and centralization of information technology” and that “from a technological perspective, the Library of Congress today is a fundamentally different institution than it was just three short years ago.”  120 Further, the Library has repeatedly expressed a commitment “to ensure the security of the digital content in [its] care.”  121 The Office believes that these security upgrades, together with the additional IT-related information made public since the close of the prior comment period, may reasonably address the concerns raised by commenters regarding the security of digital deposits. 122 To ensure, however, that stakeholders have an adequate opportunity to consider and respond to the information provided on this important issue, the Office invites further comment on this topic.

After considering the comments in response to the 2018 NPRM, the Office is proposing certain revisions to the initial proposed rule. The amended rule:

(1) Redefines an “electronic-only book” to clarify that short online works, such as social media posts, are not intended to be encompassed by the rule;

(2) Clarifies that books that are preloaded onto electronic devices before those devices are sold to consumers are subject to the rule, provided they otherwise meet its requirements;

(3) Modifies the definitional language to further clarify when print-on-demand books are to be deemed “available only online”; and

(4) Removes the requirement that all technological protection measures be removed, while retaining the general requirement that deposits be able to be “accessed and reviewed by the Copyright Office, Library of Congress, and the Library's authorized users on an ongoing basis.”

The Copyright Office invites comment from the public on these proposed amendments and on the other matters discussed in this notice.

For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR part 202 as follows:

The revisions read as follows:

The addition and revision reads as follows:

On December 10, 2019, WVDEP submitted a revision to the West Virginia SIP to incorporate a plan for maintaining the 1997 ozone NAAQS through August 10, 2026, in accordance with CAA section 175A.

In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997 (62 FR 38856), 1 EPA revised the primary and secondary NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period. EPA set the 8-hour ozone NAAQS based on scientific evidence demonstrating that ozone causes adverse health effects at lower concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone NAAQS was set. Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. On April 30, 2004 (69 FR 23858), EPA designated the Charleston Area as nonattainment for the 1997 8-hr ozone NAAQS.

Once a nonattainment area has three years of complete and certified air quality data that has been determined to attain the NAAQS, and the area has met the other criteria outlined in CAA section 107(d)(3)(E), 2 the state can submit a request to EPA to redesignate the area to attainment. Areas that have been redesignated by EPA from nonattainment to attainment are referred to as “maintenance areas.” One of the criteria for redesignation is to have an approved maintenance plan under CAA section 175A. The maintenance plan must demonstrate that the area will continue to maintain the standard for the period extending 10 years after redesignation, and it must contain such additional measures as necessary to ensure maintenance as well contingency measures as necessary to assure that violations of the standard will be promptly corrected.

On July 11, 2006 (71 FR 39001, effective August 10, 2006), EPA approved a redesignation request (and maintenance plan) from WVDEP for the Charleston Area. In accordance with section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years.

EPA's final implementation rule for the 2008 ozone NAAQS revoked the 1997 ozone NAAQS and provided that one consequence of revocation was that areas that had been redesignated to attainment ( i.e., maintenance areas) for the 1997 NAAQS no longer needed to submit second 10-year maintenance plans under CAA section 175A(b). 3 However, in South Coast Air Quality Management District v. EPA   4 (South Coast II), the United States Court of Appeals for the District of Columbia (D.C. Circuit) vacated EPA's interpretation that, because of the revocation of the 1997 ozone standard, second maintenance plans were not required for “orphan maintenance areas,” ( i.e., areas like Kanawha and Putnam Counties) that had been redesignated to attainment for the 1997 NAAQS and were designated attainment for the 2008 ozone NAAQS. Thus, states with these “orphan maintenance areas” under the 1997 ozone NAAQS must submit maintenance plans for the second maintenance period.

As previously discussed, CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. The Calcagni memo  5 provides that states may generally demonstrate maintenance by either performing air quality modeling to show the future mix of sources and emission rates will not cause a violation of the NAAQS or by showing that future emissions of a pollutant and its precursors will not exceed the level of emissions during a year when the area was attaining the NAAQS ( i.e., attainment year inventory). See Calcagni Memo at 9. EPA further clarified in three subsequent guidance memos describing “limited maintenance plans” (LMPs)  6 that the requirements of CAA section 175A could be met by demonstrating that the area's design value  7 was well below the NAAQS and that the historical stability of the area's air quality levels showed that the area was unlikely to violate the NAAQS in the future. Specifically, EPA believes that if the most recent air quality design value for the area is at a level that is below 85% of the standard, or in this case below 0.071 ppm, then EPA considers the state to have met the section 175A requirement for a demonstration that the area will maintain the NAAQS for the requisite period. Accordingly, on December 10, 2019, WVDEP submitted a second maintenance plan for the Charleston Area, following EPA's LMP guidance and demonstrating that the area will maintain the 1997 ozone NAAQS through August 10, 2026, i.e., through the end of the 20-year maintenance period.

WVDEP's December 10, 2019 SIP submittal outlines a plan for continued maintenance of the 1997 ozone NAAQS which addresses the criteria set forth in the Calcagni memo as follows.

A state should develop a comprehensive and accurate inventory of actual emissions for an attainment year which identifies the level of emissions in the area which is sufficient to maintain the NAAQS. The inventory should be developed consistent with EPA's most recent guidance. For ozone, the inventory should be based on typical summer day's emissions of oxides of nitrogen (NO X ) and volatile organic compounds (VOC), the precursors to ozone formation. In the first maintenance plan for the Charleston Area, WVDEP used 2004 for the attainment year inventory, because 2004 was one of the years in the 2002-2004 three-year period when the area first attained the 1997 8-hour ozone NAAQS. The Charleston Area continued to monitor attainment of the 1997 8-hour ozone NAAQS in 2014. Therefore, the emissions inventory from 2014 represents emissions levels conducive to continued attainment ( i.e., maintenance) of the NAAQS. Thus, WVDEP is using 2014 as representing attainment level emissions for its second maintenance plan. WVDEP used 2014 summer day emissions from EPA's 2014 version 7.0 modeling platform as the basis for the 2014 inventory presented in Table 1. 8

On December 10, 2019, WVDEP submitted a revision to the West Virginia SIP to incorporate a plan for maintaining the 1997 ozone NAAQS through June 13, 2027, in accordance with CAA section 175A. 1

In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997 (62 FR 38856), 2 EPA revised the primary and secondary NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period. EPA set the 8-hour ozone NAAQS based on scientific evidence demonstrating that ozone causes adverse health effects at lower concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone NAAQS was set. Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. On April 30, 2004 (69 FR 23858), EPA designated Steubenville-Weirton, Ohio-West Virginia (OH-WV) as nonattainment for the 1997 8-hr ozone NAAQS. The Steubenville-Weirton, OH-WV nonattainment area consists of Brooke and Hancock Counties, WV and Jefferson County, OH.

Once a nonattainment area has three years of complete and certified air quality data that has been determined to attain the NAAQS, and the area has met the other criteria outlined in CAA section 107(d)(3)(E), 3 the state can submit a request to EPA to redesignate the area to attainment. Areas that have been redesignated by EPA from nonattainment to attainment are referred to as “maintenance areas.” One of the criteria for redesignation is to have an approved maintenance plan under CAA section 175A. The maintenance plan must demonstrate that the area will continue to maintain the standard for the period extending 10 years after redesignation, and it must contain such additional measures as necessary to ensure maintenance as well contingency measures as necessary to assure that violations of the standard will be promptly corrected.

On May 14, 2007 (72 FR 27060, effective June 13, 2007), EPA approved a redesignation request (and maintenance plan) from WVDEP for the Weirton Area. In accordance with section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years.

EPA's final implementation rule for the 2008 ozone NAAQS revoked the 1997 ozone NAAQS and provided that one consequence of revocation was that areas that had been redesignated to attainment ( i.e., maintenance areas) for the 1997 NAAQS no longer needed to submit second 10-year maintenance plans under CAA section 175A(b). 4 However, in South Coast Air Quality Management District v. EPA   5 (South Coast II), the United States Court of Appeals for the District of Columbia (D.C. Circuit) vacated EPA's interpretation that, because of the revocation of the 1997 ozone standard, second maintenance plans were not required for “orphan maintenance areas,” ( i.e., areas like Brooke and Hancock Counties) that had been redesignated to attainment for the 1997 NAAQS and were designated attainment for the 2008 ozone NAAQS. Thus, states with these “orphan maintenance areas” under the 1997 ozone NAAQS must submit maintenance plans for the second maintenance period.

As previously discussed, CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. The Calcagni memo  6 provides that states may generally demonstrate maintenance by either performing air quality modeling to show the future mix of sources and emission rates will not cause a violation of the NAAQS or by showing that future emissions of a pollutant and its precursors will not exceed the level of emissions during a year when the area was attaining the NAAQS ( i.e., attainment year inventory). See Calcagni memo at 9. EPA further clarified in three subsequent guidance memos describing “limited maintenance plans” (LMPs) that the requirements of CAA section 175A could be met by demonstrating that the area's design value was well below the NAAQS and that the historical stability of the area's air quality levels showed that the area was unlikely to violate the NAAQS in the future. Specifically, EPA believes that if the most recent air quality design value for the area is at a level that is below 85% of the standard, or in this case below 0.071 ppm, then EPA considers the state to have met the section 175A requirement for a demonstration that the area will maintain the NAAQS for the requisite period. Accordingly, on December 10, 2019, WVDEP submitted a second maintenance plan for the Weirton Area, following EPA's LMP guidance and demonstrating that the area will maintain the 1997 ozone NAAQS through June 13, 2027, i.e., through the end of the 20-year maintenance period.

WVDEP's December 10, 2019 SIP submittal outlines a plan for continued maintenance of the 1997 ozone NAAQS which addresses the criteria set forth in the Calcagni memo as follows.

A state should develop a comprehensive and accurate inventory of actual emissions for an attainment year which identifies the level of emissions in the area which is sufficient to maintain the NAAQS. The inventory should be developed consistent with EPA's most recent guidance. For ozone, the inventory should be based on a typical summer day's emission of oxides of nitrogen (NO X ) and volatile organic compounds (VOC), the precursors to ozone formation. In the first maintenance plan for the Weirton Area, WVDEP used 2004 for the attainment year inventory, because 2004 was one of the years in the 2002-2004 three-year period when the area first attained the 1997 8-hour ozone NAAQS. The Weirton Area continued to monitor attainment of the 1997 8-hour ozone NAAQS in 2014. Therefore, the emissions inventory from 2014 represents emissions levels conducive to continued attainment ( i.e., maintenance) of the NAAQS. Thus, WVDEP is using 2014 as representing attainment level emissions for its second maintenance plan. WVDEP used 2014 summer day emissions from EPA's 2014 version 7.0 modeling platform as the basis for the 2014 inventory presented in Table 1.

The 2014 emissions inventory was prepared by WVDEP and uploaded into EPA's Emissions Inventory System (EIS) for inclusion in EPA's National Emission Inventory (NEI). The inventory addresses four anthropogenic emission source categories: Stationary (point) sources, stationary nonpoint (area) sources, nonroad mobile, and on-road mobile sources. Point sources are stationary sources that have the potential to emit (PTE) more than 100 tons per year (tpy) of VOC, or more than 50 tpy of NO X , and which are required to obtain an operating permit. Data are collected for each source at a facility and reported to WVDEP.

The fire emissions sector includes emissions from agricultural burning, prescribed fires, wildfires, and other types of fires. The nonpoint emissions sector includes emissions from equipment, operations, and activities that are numerous and in total have significant emissions. Examples include emissions from commercial and consumer products, portable fuel containers, home heating, repair and refinishing operations, and crematories. The non-road emissions sector includes emissions from engines that are not primarily used to propel transportation equipment, such as generators, forklifts, and marine pleasure craft. The on-road emissions sector includes emissions from engines used primarily to propel equipment on highways and other roads, including passenger vehicles, motorcycles, and heavy-duty diesel trucks. The point source sector includes large industrial operations that are relatively few in number but have large emissions, such as kraft mills, electrical generating units, and pharmaceutical factories. On-road mobile emissions are modelled by WVDEP using EPA's Motor Vehicle Emission Simulator (MOVES). WVDEP generates nonroad mobile source emissions data through the use of EPA's NONROAD2014a model. EPA reviewed the supporting documentation submitted by WVDEP and proposes to conclude that the plan's inventory is acceptable for the purposes of a subsequent maintenance plan under CAA section 175A(b).

In order to attain the 1997 ozone NAAQS, the three-year average of the fourth-highest daily average ozone concentrations (design value, DV) at each monitor within an area must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, appendix I, the standard is attained if the DV is 0.084 or below. CAA section 175A requires a demonstration that the area will continue to maintain the NAAQS throughout the duration of the requisite maintenance period. Consistent with the prior guidance documents discussed previously in this document, EPA believes that if the most recent DV for the area is well below the NAAQS ( e.g. below 85%, or in this case below 0.071 ppm), the section 175A demonstration requirement has been met, provided that Prevention of Significant Deterioration (PSD) requirements, any control measures already in the SIP, and any Federal measures remain in place through the end of the second 10-year maintenance period (absent a showing consistent with section 110(l) that such measures are not necessary to assure maintenance).

For the purposes of demonstrating a stable or improving air quality trend, West Virginia used a weighted design value of the most recent five design values. The five most recent design values available cover the 2012-2018 ambient air monitoring data. This includes 3-year design values for 2012-2014, 2013-2015, 2014-2016, 2015-2017, and 2016-2018. Data from 2014, 2015, and 2016 was included in three out of five design values. Table 2 of this document shows the most recent five years of ambient ozone air quality 3-year design values. These design values are from EPA's Air Quality System (AQS). The 7th column is the 5-year weighted design value calculated by West Virginia. This 5-year weighted design value was calculated by averaging all the 4th Max Ozone values from the years 2012-2018. The 8th column is the 5-year design value average calculated by EPA. The 5-year design value average is calculated by averaging the design values for 2012-2014, 2013-2015, 2014-2016, 2015-2017, and 2016-2018. The 5-year weighted design value calculated by West Virginia is 0.067 ppm, and the 5-year design value average calculated by EPA is 0.066 ppm, for the Weirton Area, both of which are below the 0.071 ppm threshold level and 79% of the NAAQS. Table 2 of this document shows that the most recent five years of ambient ozone air quality 3-year average DVs for the Weirton Area continue to be below 85% of the 1997 ozone NAAQS. It demonstrates that 8-hour ozone air quality levels are significantly below the level of the standard.

For the 2023 projections shown in Table 2 of this document, EPA used a 2011-based air quality modeling platform, which includes emissions, meteorology, and other inputs for 2011 as the base year and emissions for 2023 as the future analytic year base case. Specifically, the modeling platform included a variety of data that contained information pertaining to the modeling domain and simulation period. These include gridded, hourly emissions estimates and meteorological data, and boundary concentrations. Separate emissions inventories were prepared for the 2011 base year and the 2023 base case. All other inputs ( i.e., meteorological fields, initial concentrations, and boundary concentrations) were specified for the 2011 base year model application and remained unchanged for the future-year model simulations. The 2011 modeling platform and projected 2023 emissions were used to drive the 2011 base year and 2023 future case air quality model simulations. The 2023 projected DV for the Weirton Area is 0.060 ppm, well below the level of the 1997 8-hour ozone NAAQS, 0.08 ppm. Therefore, EPA proposes to determine that future violations of the NAAQS in this area are unlikely.

Once an area has been redesignated to attainment, the state remains obligated to maintain an air quality network in accordance with 40 CFR part 58, in order to verify the area's attainment status. In the December 10, 2019 submittal, West Virginia committed to maintaining an appropriate air quality monitoring network, in accordance with 40 CFR part 58. West Virginia will continue to conduct ambient ozone air quality monitoring in the area throughout the term of the maintenance plan to verify continued attainment with the 1997 8-hour ozone NAAQS and to protect any applicable PSD increments. WVDEP states that air quality measurements will be performed in accordance with appropriate regulations and guidance documents along with EPA quality assurance requirements, and monitoring procedures will be determined in accordance with 40 CFR part 58. WVDEP commits to submitting quality-assured ozone data to EPA through the AQS and ultimately certified by the WVDEP. EPA has analyzed the commitments in the plan and determined that they meet the requirements.

The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all pollution control measures that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA. WVDEP's December 10, 2019 submittal outlines its adopted permanent and Federally enforceable control measures in order to regulate emission growth. The Weirton Area's control measures include the permitting regulations and PSD measures, which will remain in effect through the maintenance plan period. Air permits issued will incorporate applicable PSD, New Source Performance Standard, and National Emission Standards for Hazardous Air Pollutant requirements.

WVDEP's December 10, 2019 submittal included the required contingency plan, to be implemented in the event of NAAQS violations in the future. WVDEP has committed to adopting and implementing one or more of the following control measures within three months after verification of a monitored ozone standard violation in the Weirton Area: (1) Extend the applicability of the VOC reasonably available control technology (RACT) rule to include source categories previously excluded ( e.g., wastewater treatment facilities); (2) revise permitting requirements establishing more stringent emissions control measures and/or emissions offsets; (3) implement NOx RACT requirements if necessary; (4) develop regulations to establish plant-wide emission caps; (5) implement Stage II Vapor Recovery regulations; (6) establish a program focusing on increasing the public's understanding of air quality issues and increasing support for actions to improve the air quality; and (7) initiate voluntary local control measures ( e.g., bicycle/pedestrian measures, engine idling reduction, partnership with ground freight industry, increase compliance with open burning restrictions, and school bus engine retrofit program).

If there is indeed a violation and the DV exceeds the NAAQS, the contingency plan will be “triggered,” based on the following schedule: (1) Quality assurance procedures must confirm the monitored violation within 45 days of occurrence; (2) a draft rule would be developed by the WVDEP for any regulation chosen, (3) WVDEP will adopt the selected control measure(s) as emergency rule(s) which will be implemented within six months after adoption and will file the rule(s) as legislative rule(s) for permanent authorization by the legislature; and (4) for each voluntary measure selected, the WVDEP will initiate program development with local governments within the area by the start of the following ozone season.

Furthermore, if the triennial inventories indicate emissions growth in excess of 10% of the 2011 base-year inventory or if a monitored ozone air quality exceedance pattern indicates that an ozone NAAQS violation may be imminent, WVDEP will evaluate existing control measures to ascertain if additional regulatory revisions are necessary to maintain the ozone standards.

EPA finds that West Virginia's contingency measures, as well as the commitment to continue implementing any SIP requirements, satisfy the pertinent requirements of section 175A. Importantly, while EPA notes that West Virginia's contingency measures option six (increasing public understanding) and seven (voluntary local control measures), are not enforceable measures that standing alone are likely to lead to reductions in emissions that could promptly correct a violation of the NAAQS, their inclusion among other measures that meet that criterion, is overall SIP-strengthening, and their inclusion does not alter EPA's proposal to find the LMP is fully approvable.

Transportation conformity is required by section 176(c) of the CAA. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's conformity rule at 40 CFR part 93 requires that transportation plans, programs and projects conform to SIPs and establish the criteria and procedures for determining whether or not they conform. The conformity rule generally requires a demonstration that emissions from the Regional Transportation Plan (RTP) and the Transportation Improvement Program (TIP) are consistent with the motor vehicle emissions budget (MVEB) contained in the control strategy SIP revision or maintenance plan (40 CFR 93.101, 93.118, and 93.124). An MVEB is defined as “that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions (40 CFR 93.101).”

Under the conformity rule, LMP areas may demonstrate conformity without a regional emission analysis (40 CFR 93.109(e)). However, because LMP areas are still maintenance areas, certain aspects of transportation conformity determinations still will be required for transportation plans, programs and projects. Specifically, for such determinations, RTPs, TIPs and transportation projects still will have to demonstrate that they are fiscally constrained (40 CFR 93.108), meet the criteria for consultation (40 CFR 93.105 and 40 CFR 93.112) and Transportation Control Measure implementation in the conformity rule provisions (40 CFR 93.113). Additionally, conformity determinations for RTPs and TIPs must be determined no less frequently than every four years, and conformity of plan and TIP amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104. In addition, for projects to be approved they must come from a currently conforming RTP and TIP (40 CFR 93.114 and 93.115). The Weirton Area remains under the obligation to meet the applicable conformity requirements for the 1997 8-hour ozone NAAQS.

EPA's review of WVDEP's December 10, 2019 submittal indicates it meets CAA section 175A and all applicable CAA requirements. EPA is proposing to approve the LMP for the 1997 8-hour ozone NAAQS for the Weirton Area (comprising Brooke and Hancock Counties), as a revision to the West Virginia SIP. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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 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, this proposed rule, pertaining to West Virginia's second maintenance plan for Brooke and Hancock Counties, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

On December 10, 2019, WVDEP submitted a revision to the West Virginia SIP to incorporate a plan for maintaining the 1997 ozone NAAQS through October 16, 2026, in accordance with CAA section 175A. 1

In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997 (62 FR 38856), 2 EPA revised the primary and secondary NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period. EPA set the 8-hour ozone NAAQS based on scientific evidence demonstrating that ozone causes adverse health effects at lower concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone NAAQS was set. Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. On April 30, 2004 (69 FR 23858), EPA designated Huntington-Ashland Area, West Virginia-Kentucky (WV-KY) as nonattainment for the 1997 8-hr ozone NAAQS. The Huntington-Ashland Area, WV-KY nonattainment area consists of Cabell and Wayne Counties, WV and Boyd County, KY.

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

On October 19, 2018, the Connecticut Department of Energy and Environmental Protection (DEEP) submitted a revision to its State Implementation Plan (SIP) for amendments to Regulations of Connecticut State Agencies (RCSA) section 22a-174-18, Control of particulate matter (PM) and visible emissions. The revision consists of amendments to subsections (c), (f), and (j) to define the process industries and activities to which this regulation applies, to make technical corrections to an emission-rate calculation method, and to make minor, non-substantive modifications in regulatory language.

Connecticut first adopted regulations to limit PM and visible emissions from stationary sources, including among other sources, electric generating units (EGUs) and boilers, in the early 1970s. In 1972, EPA approved “Control of particulate emissions,” into the Connecticut SIP. See 37 FR 10842. That regulation has since been recodified as Regulations of Connecticut State Agencies (RCSA) section 22a-174-18.

The most recent amendments to section 22a-174-18 were submitted by CT DEEP on December 1, 2004 and approved into the Connecticut SIP on July 16, 2014. See 79 FR 41427. Those amendments updated the State's visible emissions standards. Details of the State's December 2004 SIP submittal and the rationale for EPA's approval are explained in the August 15, 2013, notice proposed of rulemaking (NPRM). See 78 FR 49701. See Section II of that NPRM for a brief discussion of the relationships among “visible emissions,” “opacity” and “particulate matter.”

On October 19, 2018, Connecticut submitted to EPA revisions to RCSA section 22a-174-18. These revisions, which became effective in Connecticut on August 3, 2018, consist of revisions to subsections (c), (f), and (j) of RCSA section 22a-174-18 regarding the control of emissions of particulate matter from process industries. The revisions modify language and correct errors in the State's 2004 revision of RCSA section 22a-174-18, which was approved by EPA on July 16, 2014. See 79 FR 41427.

Specifically, the revisions clarify the types of industrial activities regulated by subsection (f) by adding a definition of “process industry” in subsection (f). 1 The revisions also simplify the method used in subsection (f) to calculate the allowable emission rate for process industries, clarify in subsection (c) that process industries subject to subsection (f) are not subject to subsection (c), and make minor, non-substantive changes in language to subsection (j). 2

EPA has determined that Connecticut's revisions to RCSA section 22a-174-18 are clarifications and corrections that improve the State's ability to implement the regulation. In addition, the submitted revisions to subsection (j) are non-substantive ( e.g., changing “subdivision” to “subsection”). These revisions do not result in any substantive change to the EPA-approved subsection (j). Therefore, EPA proposes to approve into the Connecticut SIP the revisions to subsections (c), (f), and (j) that CT DEEP submitted on October 19, 2018.

EPA is proposing to approve, and incorporate into the Connecticut SIP, the revisions to subsections (c), (f), and (j) of RCSA section 22a-174-18, Control of Particulate Matter and Visible Emissions, effective on August 3, 2018, submitted to EPA on October 19, 2018.

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

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference into the Connecticut SIP the Connecticut regulation referenced in Section III above. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

• Is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;

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

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

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

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

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

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

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

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

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

On December 10, 2019, WVDEP submitted a revision to the West Virginia SIP to incorporate a plan for maintaining the 1997 ozone NAAQS through June 14, 2027, in accordance with CAA section 175A. 1

In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997 (62 FR 38856), 2 EPA revised the primary and secondary NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period. EPA set the 8-hour ozone NAAQS based on scientific evidence demonstrating that ozone causes adverse health effects at lower concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone NAAQS was set. Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. On April 30, 2004 (69 FR 23858), EPA designated Wheeling Area, West Virginia-Ohio (WV-OH), as nonattainment for the 1997 8-hr ozone NAAQS. The Wheeling Area, WV-OH nonattainment area consists of Marshall and Ohio Counties, WV and Belmont County, OH.

Once a nonattainment area has three years of complete, certified air quality data that has been determined to attain the NAAQS, and the area has met the other criteria outlined in CAA section 107(d)(3)(E), 3 the state can submit a request to EPA to redesignate the area to attainment. Areas that have been redesignated by EPA from nonattainment to attainment are referred to as “maintenance areas.” One of the criteria for redesignation is to have an approved maintenance plan under CAA section 175A. The maintenance plan must demonstrate that the area will continue to maintain the standard for the period extending 10 years after redesignation, and it must contain such additional measures as necessary to ensure maintenance as well contingency measures as necessary to assure that violations of the standard will be promptly corrected.

On May 15, 2007 (72 FR 27247, effective June 14, 2007), EPA approved a redesignation request (and maintenance plan) from WVDEP for the Wheeling Area. In accordance with section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years.

EPA's final implementation rule for the 2008 ozone NAAQS revoked the 1997 ozone NAAQS and provided that one consequence of revocation was that areas that had been redesignated to attainment ( i.e., maintenance areas) for the 1997 NAAQS no longer needed to submit second 10-year maintenance plans under CAA section 175A(b). 4 However, in South Coast Air Quality Management District v. EPA   5 (South Coast II), the United States Court of Appeals for the District of Columbia (D.C. Circuit) vacated EPA's interpretation that, because of the revocation of the 1997 ozone standard, second maintenance plans were not required for “orphan maintenance areas,” ( i.e., areas like Marshall and Ohio Counties) that had been redesignated to attainment for the 1997 NAAQS and were designated attainment for the 2008 ozone NAAQS. Thus, states with these “orphan maintenance areas” under the 1997 ozone NAAQS must submit maintenance plans for the second maintenance period.

As previously discussed, CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA has published longstanding guidance that provides further insight on the content of an approvable maintenance plan, explaining that a maintenance plan should address five elements: (1) An attainment emissions inventory; (2) a maintenance demonstration; (3) a commitment for continued air quality monitoring; (4) a process for verification of continued attainment; and (5) a contingency plan. The Calcagni memo  6 provides that states may generally demonstrate maintenance by either performing air quality modeling to show the future mix of sources and emission rates will not cause a violation of the NAAQS or by showing that future emissions of a pollutant and its precursors will not exceed the level of emissions during a year when the area was attaining the NAAQS ( i.e., attainment year inventory). See Calcagni memo at 9. EPA further clarified in three subsequent guidance memos describing “limited maintenance plans” (LMPs)  7 that the requirements of CAA section 175A could be met by demonstrating that the area's design value  8 was well below the NAAQS and that the historical stability of the area's air quality levels showed that the area was unlikely to violate the NAAQS in the future. Specifically, EPA believes that if the most recent air quality design value for the area is at a level that is below 85% of the standard, or in this case below 0.071 ppm, then EPA considers the state to have met the section 175A requirement for a demonstration that the area will maintain the NAAQS for the requisite period. Accordingly, on December 10, 2019, WVDEP submitted a second maintenance plan LMP for the Wheeling Area, following EPA's LMP guidance and demonstrating that the area will maintain the 1997 ozone NAAQS through June 14, 2027, i.e., through the end of the 20-year maintenance period.

WVDEP's December 10, 2019 SIP submittal outlines a plan for continued maintenance of the 1997 ozone NAAQS which addresses the criteria set forth in the Calcagni memo as follows.

A state should develop a comprehensive and accurate inventory of actual emissions for an attainment year which identifies the level of emissions in the area which is sufficient to maintain the NAAQS. The inventory should be developed consistent with EPA's most recent guidance. For ozone, the inventory should be based on typical summer day's emissions of oxides of nitrogen (NO X ) and volatile organic compounds (VOC), the precursors to ozone formation. In the first maintenance plan for the Wheeling Area, WVDEP used 2004 for the attainment year inventory, because 2004 was one of the years in the 2002-2004 three-year period when the area first attained the 1997 8-hour ozone NAAQS. The Wheeling Area continued to monitor attainment of the 1997 8-hour ozone NAAQS in 2014. Therefore, the emissions inventory from 2014 represents emissions levels conducive to continued attainment ( i.e., maintenance) of the NAAQS. Thus, WVDEP is using 2014 as representing attainment level emissions for its second maintenance plan. WVDEP used 2014 summer day emissions from EPA's 2014 version 7.0 modeling platform as the basis for the 2014 inventory presented in Table 1. 9

The 2014 emissions inventory was prepared by WVDEP and uploaded into EPA's Emissions Inventory System (EIS) for inclusion in EPA's National Emission Inventory (NEI). The inventory addresses four anthropogenic emission source categories: Stationary (point) sources, stationary nonpoint (area) sources, nonroad mobile, and on-road mobile sources. Point sources are stationary sources that have the potential to emit (PTE) more than 100 tons per year (tpy) of VOC, or more than 50 tpy of NO X , and which are required to obtain an operating permit. Data are collected for each source at a facility and reported to WVDEP.

The fire emissions sector includes emissions from agricultural burning, prescribed fires, wildfires, and other types of fires. The nonpoint emissions sector includes emissions from equipment, operations, and activities that are numerous and in total have significant emissions. Examples include emissions from commercial and consumer products, portable fuel containers, home heating, repair and refinishing operations, and crematories. The non-road emissions sector includes emissions from engines that are not primarily used to propel transportation equipment, such as generators, forklifts, and marine pleasure craft. The on-road emissions sector includes emissions from engines used primarily to propel equipment on highways and other roads, including passenger vehicles, motorcycles, and heavy-duty diesel trucks. The point source sector includes large industrial operations that are relatively few in number but have large emissions, such as kraft mills, electrical generating units, and pharmaceutical factories. On-road mobile emissions are modelled by WVDEP using EPA's Motor Vehicle Emission Simulator (MOVES). WVDEP generates nonroad mobile source emissions data through use of EPA's NONROAD2014a model. EPA reviewed the supporting documentation submitted by WVDEP  11 and proposes to conclude that the plan's inventory is acceptable for the purposes of a subsequent maintenance plan under CAA section 175A(b). 12

In order to attain the 1997 ozone NAAQS, the three-year average of the fourth-highest daily average ozone concentrations (design value, DV) at each monitor within an area must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, appendix I, the standard is attained if the DV is 0.084 or below. CAA section 175A requires a demonstration that the area will continue to maintain the NAAQS throughout the duration of the requisite maintenance period. Consistent with the prior guidance documents discussed previously in this document, EPA believes that if the most recent DV for the area is well below the NAAQS ( e.g. below 85%, or in this case below 0.071 ppm), the section 175A demonstration requirement has been met, provided that Prevention of Significant Deterioration (PSD) requirements, any control measures already in the SIP, and any Federal measures remain in place through the end of the second 10-year maintenance period (absent a showing consistent with section 110(l) that such measures are not necessary to assure maintenance).

For the purposes of demonstrating a stable or improving air quality trend, West Virginia used a weighted design value of the most recent five design values. The five most recent design values available cover the 2012-2018 ambient air monitoring data. This includes 3-year design values for 2012-2014, 2013-2015, 2014-2016, 2015-2017, and 2016-2018. Data from 2014, 2015, and 2016 was included in three out of five design values. Table 2 of this document shows the most recent five years of ambient ozone air quality 3-year design values. These design values are from EPA's Air Quality System (AQS). The 7th column is a calculated 5-year weighted design value calculated by West Virginia. This 5-year weighted design value was calculated by averaging all the 4th Max Ozone values from the years 2012-2018. The 8th column is the 5-year design value average calculated by EPA. The 5-year design value average is calculated by averaging the design values for 2012-2014, 2013-2015, 2014-2016, 2015-2017, and 2016-2018. The 5-year weighted design value calculated by West Virginia is 0.067 ppm, and the 5-year design value calculated by EPA is 0.066 p.m., for the Wheeling Area, both of which are below the 0.071 ppm threshold level and 79% of the NAAQS. Table 2 shows that the most recent five years of ambient ozone air quality 3-year average DVs for the Wheeling Area continue to be below 85% of the 1997 ozone NAAQS. It demonstrates that 8-hour ozone air quality levels are significantly below the level of the standard.

For the 2023 projections shown in Table 2, EPA used a 2011-based air quality modeling platform, which includes emissions, meteorology, and other inputs for 2011 as the base year and emissions for 2023 as the future analytic year base case. Specifically, the modeling platform included a variety of data that contained information pertaining to the modeling domain and simulation period. These include gridded, hourly emissions estimates and meteorological data, and boundary concentrations. Separate emissions inventories were prepared for the 2011 base year and the 2023 base case. All other inputs ( i.e. meteorological fields, initial concentrations, and boundary concentrations) were specified for the 2011 base year model application and remained unchanged for the future-year model simulations. The 2011 modeling platform and projected 2023 emissions were used to drive the 2011 base year and 2023 future case air quality model simulations. The 2023 projected DV for the Wheeling Area is 0.060 ppm, well below the level of the 1997 8-hour ozone NAAQS, 0.08 ppm. Therefore, EPA proposes to determine that that future violations of the NAAQS in this area are unlikely.

Once an area has been redesignated to attainment, the state remains obligated to maintain an air quality network in accordance with 40 CFR part 58, in order to verify the area's attainment status. In the December 10, 2019 submittal, West Virginia committed to maintaining an appropriate air quality monitoring network, in accordance with 40 CFR part 58. West Virginia will continue to conduct ambient ozone air quality monitoring in the area throughout the term of the maintenance plan to verify continued attainment with the 1997 8-hour ozone NAAQS and to protect any applicable PSD increments. WVDEP states that air quality measurements will be performed in accordance with appropriate regulations and guidance documents along with EPA quality assurance requirements, and monitoring procedures will be determined in accordance with 40 CFR part 58. WVDEP commits to submitting quality-assured ozone data to EPA through the AQS and ultimately certified by the WVDEP. EPA has analyzed the commitments in the plan and determined that they meet the requirements.

The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all pollution control measures that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA. WVDEP's December 10, 2019 submittal outlines its adopted permanent and Federally enforceable control measures in order to regulate emission growth. The Wheeling Area's control measures include the permitting regulations and PSD measures, which will remain in effect through the maintenance plan period. Air permits issued will incorporate applicable PSD, New Source Performance Standard, and National Emission Standards for Hazardous Air Pollutant requirements.

WVDEP's December 10, 2019 submittal included the required contingency plan, to be implemented in the event of NAAQS violations in the future. WVDEP has committed to adopting and implementing one or more of the following control measures within three months after verification of a monitored ozone standard violation in the Wheeling Area: (1) Extend the applicability of the VOC reasonably available control technology (RACT) rule to include source categories previously excluded ( e.g., wastewater treatment facilities); (2) revise permitting requirements establishing more stringent emissions control measures and/or emissions offsets; (3) implement NOx RACT requirements if necessary; (4) develop regulations to establish plant-wide emission caps; (5) implement Stage II Vapor Recovery regulations; (6) establish a program focusing on increasing the public's understanding of air quality issues and increasing support for actions to improve the air quality; and (7) initiate voluntary local control measures ( e.g., bicycle/pedestrian measures, engine idling reduction, partnership with ground freight industry, increase compliance with open burning restrictions, and school bus engine retrofit program).

If there is indeed a violation and the DV exceeds the NAAQS, the contingency plan will be “triggered,” based on the following schedule: (1) Quality assurance procedures must confirm the monitored violation within 45 days of occurrence; (2) a draft rule would be developed by the WVDEP for any regulation chosen, (3) WVDEP will adopt the selected control measure(s) as emergency rule(s) which will be implemented within six months after adoption and will file the rule(s) as legislative rule(s) for permanent authorization by the legislature; and (4) for each voluntary measure selected, the WVDEP will initiate program development with local governments within the area by the start of the following ozone season.

Furthermore, if the triennial inventories indicate emissions growth in excess of 10% of the 2011 base-year inventory or if a monitored ozone air quality exceedance pattern indicates that an ozone NAAQS violation may be imminent, WVDEP will evaluate existing control measures to ascertain if additional regulatory revisions are necessary to maintain the ozone standards.

EPA finds that West Virginia's contingency measures, as well as the commitment to continue implementing any SIP requirements, satisfy the pertinent requirements of section 175A. Importantly, while EPA notes that West Virginia's contingency measures option six (increasing public understanding) and seven (voluntary local control measures), are not enforceable measures that standing alone are likely to lead to reductions in emissions that could promptly correct a violation of the NAAQS, their inclusion among other measures that meet that criterion, is overall SIP-strengthening, and their inclusion does not alter EPA's proposal to find the LMP is fully approvable.

Transportation conformity is required by section 176(c) of the CAA. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's conformity rule at 40 CFR part 93 requires that transportation plans, programs and projects conform to SIPs and establish the criteria and procedures for determining whether or not they conform. The conformity rule generally requires a demonstration that emissions from the Regional Transportation Plan (RTP) and the Transportation Improvement Program (TIP) are consistent with the motor vehicle emissions budget (MVEB) contained in the control strategy SIP revision or maintenance plan (40 CFR 93.101, 93.118, and 93.124). An MVEB is defined as “that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions (40 CFR 93.101).”

Under the conformity rule, LMP areas may demonstrate conformity without a regional emission analysis (40 CFR 93.109(e)). However, because LMP areas are still maintenance areas, certain aspects of transportation conformity determinations still will be required for transportation plans, programs and projects. Specifically, for such determinations, RTPs, TIPs and transportation projects still will have to demonstrate that they are fiscally constrained (40 CFR 93.108), meet the criteria for consultation (40 CFR 93.105 and 93.112) and Transportation Control Measure implementation in the conformity rule provisions (40 CFR 93.113). Additionally, conformity determinations for RTPs and TIPs must be determined no less frequently than every four years, and conformity of plan and TIP amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104. In addition, for projects to be approved they must come from a currently conforming RTP and TIP (40 CFR 93.114 and 93.115). The Wheeling Area remains under the obligation to meet the applicable conformity requirements for the 1997 8-hour ozone NAAQS.

EPA's review of WVDEP's December 10, 2019 submittal indicates it meets CAA section 175A and all applicable CAA requirements. EPA is proposing to approve the LMP for the 1997 8-hour ozone NAAQS for the Wheeling Area (comprising Marshall and Ohio Counties), as a revision to the West Virginia SIP. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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 (Public Law 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 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, this proposed rule, pertaining to West Virginia's second maintenance plan for Marshall and Ohio Counties, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

This is a summary of the Commission's document, GN Docket No. 18-122, DA 20-644, released on June 18, 2020. The complete text of this document is available on the Commission's website at https://ecfsapi.fcc.gov/file/061838609756/DA-20-644A1.pdf or by using the search function for GN Docket No. 18-122 on the Commission's ECFS web page at www.fcc.gov/ecfs.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file elections on or before the date indicated on the first page of this document.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

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

With the document, DA 20-644, the Bureau seeks comment on a request that the Commission stay, pending judicial review, the rules adopted in the Report and Order (85 FR 22804, April 23, 2020), filed by the PSSI. 1 PSSI has challenged the Report and Order in the United States Court of Appeals for the D.C. Circuit and seeks a stay from the Commission pending judicial review.

The Bureau seeks comment on the issues raised by the Small Satellite Operators' request for stay.

The Council and NMFS manage the American Samoa deep-set longline fishery under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP) and implementing regulations, as authorized by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The fishery targets South Pacific albacore, and occasionally catches other pelagic fish, such as swordfish. In 2011, based on a Council recommendation in FEP Amendment 5, NMFS implemented gear requirements that were intended to reduce interactions with green sea turtles (76 FR 52888, August 24, 2011). That rule also implemented a limit of 10 swordfish that may be retained on a fishing trip for vessels over 40 ft. The 10-fish limit was intended to discourage switching from deep-set gear targeting albacore to shallow-set gear targeting swordfish because shallow-set fishing may interact more frequently with green sea turtles than deep-set fishing.

The deep-set gear requirements, including setting hooks below 100 m, have reduced interactions with green sea turtles. The number of swordfish caught per trip has been small, and there has been no evidence that longline fishermen have targeted swordfish. Based on logbook data from 2010 through 2018, the average annual catch rate of swordfish ranged from 0.0008 to 0.03 swordfish per 1,000 hooks. From 2008 through 2018, the number of swordfish caught ranged from 0.6 to 2.8 fish per trip. The most recent stock assessment of Southwest Pacific swordfish, conducted in 2017, indicated the swordfish stock is neither overfished nor subject to overfishing. See the regulatory amendment and the Classification section for details about catch and revenue in this fishery.

The current requirement for vessels over 40 ft. to discard any swordfish in excess of the 10-fish limit results in wasteful discards, potential lost revenues, and an unnecessary reduction in seafood available to the Nation. The American Samoa longline fishery is facing challenging economic conditions and the Council recommended that NMFS remove the swordfish limit to provide relief. Removing the swordfish limit would allow fishermen to retain a few more swordfish that might be caught incidentally during deep-set fishing, while maintaining safeguards for green sea turtles through the existing gear restrictions. All other management measures (including a limited vessel participation, prohibited fishing areas, fishery observers, logbook reporting, vessel monitoring systems, and gear and operational requirements) would remain in place and continue to apply in the fishery.

NMFS will consider public comments on this proposed rule and will announce the final rule in the Federal Register . NMFS must receive any comments by the date provided in the DATES heading, not postmarked or otherwise transmitted by that date.

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

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

This proposed rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. This proposed rule would remove the limits on the number of swordfish that may be landed or possessed during any given American Samoa-based longline fishing trip south of the Equator. Currently, a longline vessel over 40 ft may keep no more than 10 swordfish on any given trip. Under the proposed rule, there would be no limit on the number of swordfish landed or kept per trip. All other measures applicable to the fishery would remain unchanged. The proposed rule intends to reduce regulatory discards and optimize the yield of swordfish.

This rule would directly affect vessels that hold American Samoa longline limited entry Class B, C, and D permits. Class A permit holders are exempt from the current swordfish retention requirement. As of May 15, 2020, 43 vessels held American Samoa longline limited entry Class B, C, and D permits, but the potential number of affected vessels could be as high as 60, which is the total number of permits available. According to logbook information, twelve American Samoa longline vessels within these class size permit categories actively fished in 2018 (four Class C and eight Class D). No Class B vessels actively fished in recent years.

Based on data provided in logbooks and observer records, a total of approximately 21,500 lb of swordfish may have been discarded due to the swordfish trip limit among all vessels from 2013 through 2016. At the 2018 market price of $3.37/lb, and assuming that none of those discards were due to shark predation, small size, or other factors contributing to low marketability, those discards would have represented a loss of total fleetwide revenue of approximately $72,000 over the four years, or an annual fleetwide loss in revenue of just over $18,000. Using the average number of Class C and D longline vessels that actively fished in 2017 and 2018, this would represent an annual loss in potential revenue of $1,393 per active vessel. Not all swordfish retained would have been sold in the local markets; some would be retained for onboard consumption, kept for personal consumption and/or given away to the local community, as is customary in American Samoa.

NMFS estimates the average annual 2015-2018 gross ex-vessel value of pelagic fish landed by the American Samoa-based longline fishery to be about $5.075 million (all years adjusted to 2018 dollars). Based on the average number of vessels fishing during those years, the average annual revenue would be just over $300,000 per active vessel. NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $11 million for all of its affiliated operations worldwide. Based on available information, NMFS has determined that all vessels that are currently permitted federally under the FEP are small entities.

Under the proposed action, American Samoa-based longline fishermen would be able to keep more swordfish than what is currently allowed, resulting in an additional revenue gain of up to $1,393 per active vessel per year. The other action alternative that was considered would allow the retention of up to 25 swordfish per trip for a trip where no observer is on board the vessel, and an unlimited amount of swordfish if an observer is on board. The preferred action was selected because deep-set gear restrictions have reduced green sea turtle interactions, there has been no evidence that fishermen switch to shallow-setting on unobserved trips, and this action would be preferred by small entities.

Under the proposed action, the American Samoa longline fishery managed under the Pelagic FEP is not expected to expand substantially nor change the manner in which they are currently conducted ( i.e., area fished, number of vessels longline fishing, number of trips taken per year, number of hooks set per vessel during a trip, depth of hooks, or deployment techniques in setting longline gear). The proposed rule does not duplicate, overlap, or conflict with other Federal rules and is not expected to have significant impact on small organizations or government jurisdictions. Furthermore, there would be little, if any, disproportionate adverse economic impacts from the proposed rule based on gear type, or relative vessel size. The proposed rule also will not place a substantial number of small entities, or any segment of small entities, at a significant competitive disadvantage to large entities.

For the reasons above, NMFS does not expect the proposed action to have a significant economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 665 as follows: