Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0875; Project Identifier MCAI-2022-00640-R” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Hal Jensen, Aerospace Engineer, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 950 L'Enfant Plaza N SW, Washington, DC 20024; telephone (202) 267-9167; email hal.jensen@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued a series of EASA ADs, with the most recent being EASA AD 2022-0086, dated May 13, 2022 (EASA AD 2022-0086), to correct an unsafe condition for Airbus Helicopters Deutschland GmbH (AHD), formerly Eurocopter Deutschland GmbH; and Airbus Helicopters Inc., formerly American Eurocopter LLC, Model MBB-BK117 C-2 helicopters. EASA issued EASA AD 2022-0086 to supersede EASA AD 2019-0313, dated December 20, 2019.

This proposed AD was prompted by reports of excessively worn bolts that connect the cardan-pivot joint with the piston rod of the TRA assembly. According to Airbus Helicopters, manufacturer investigations of affected TRAs have revealed improperly assembled cardan-pivot joints as the main cause of the excessively worn bolts. Additionally, incorrect washers as well as improperly shimmed laminated washers contribute to axial play and increased wear of the bolt. The FAA is proposing this AD to detect and prevent worn bolts. The unsafe condition, if not addressed, could result in helicopter oscillations on the yaw axis during flight, failure of a bolt resulting in loss of control of the tail rotor, and subsequent loss of control of the helicopter. See EASA AD 2022-0086 for additional background information.

EASA AD 2022-0086 requires, for certain TRAs with a steel or aluminum cardan-pivot joint, repetitively measuring the minimum diameter of the cardan-pivot joint assembly bolt. Depending on the results, EASA AD 2022-0086 requires replacing the bolt and laminated washers of the affected TRA or repetitively measuring the minimum diameter of the cardan-pivot joint assembly bolt at a reduced compliance time; or contacting AHD for approved repair instructions and compliance time or measuring the maximum diameter of the TRA piston rod bore hole. Depending on the results of measuring the maximum diameter of the TRA piston rod bore hole, EASA AD 2022-0086 requires replacing the bolt and laminated washers of the affected TRA; or contacting AHD for approved repair instructions and compliance time or repetitively measuring the maximum diameter of the TRA piston rod bore hole at a reduced compliance time. EASA AD 2022-0086 also prohibits installing an affected TRA assembly unless it passes its required inspections. Lastly, EASA AD 2022-0086 specifies certain terminating actions for repetitively measuring the minimum diameter of the cardan-pivot joint assembly bolt.

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

The FAA reviewed Airbus Helicopters Alert Service Bulletin MBB-BK117 C-2-67A-027, Revision 2, dated December 15, 2021. This service information specifies, for TRAs with a steel or aluminum cardan-pivot joint, procedures for measuring the minimum diameter of the cardan-pivot joint assembly bolt, measuring the maximum diameter of the TRA piston rod bore hole, replacing the bolt and laminated washers, and reassembling the TRA.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA is proposing this AD after evaluating all known relevant information and determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2022-0086, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this proposed AD and except as discussed under “Differences Between this Proposed AD and the EASA AD.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2022-0086 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0086 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0086 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0086. Service information referenced in EASA AD 2022-0086 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0875 after the FAA final rule is published.

EASA AD 2022-0086 requires discarding certain parts, whereas this proposed AD would require removing those parts from service instead. EASA AD 2022-0086 requires maintaining a removed bolt for possible investigation purposes for four weeks, whereas this proposed AD would not require that action. EASA AD 2022-0086 requires contacting AHD for approved repair instructions and accomplishing those instructions within the compliance time specified therein, whereas this proposed AD would require accomplishing a repair in accordance with certain approved methods before further flight.

The FAA estimates that this AD, if adopted as proposed, would affect 142 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this proposed AD.

Measuring the cardan-pivot joint assembly bolt would take about 2 work-hours and have a nominal parts cost for an estimated cost of $170 per helicopter and $24,140 for the U.S. fleet, per inspection cycle. If required, measuring the TRA piston rod bore hole following the cardan-pivot joint assembly bolt inspection would take about an additional 0.5 work-hour for an estimated cost of $43 per helicopter, per inspection cycle. Replacing a bolt and the laminated washers following an inspection would take about an additional 0.25 work-hour and parts would cost about $586 for an estimated cost of $607 per replacement.

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

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

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

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

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

(2) Would not affect intrastate aviation in Alaska, and

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

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

I. Executive Summary

This rulemaking proposes several amendments in title 14, Code of Federal Regulations (14 CFR), parts 91 subpart K (part 91K), 121, 125, and 135 that would remove certain prescriptive manual requirements for certificate holders. First, this proposed rulemaking would amend §§ 91.1025, 121.135, 125.73, and 135.23 to remove the requirement to have the date of last revision on each page concerned as it applies to operators using electronic manuals. Further, this proposed rule would add a separate requirement to allow certificate holders using electronic manuals flexibility in displaying the date of last revision, while maintaining the existing requirement for certificate holders with paper manuals.

In addition, this rulemaking proposes clarifying in §§ 91.1023, 121.139, and 135.21 that appropriate parts of the manual must be accessible on each aircraft when away from their principal base of operations, in lieu of indicating that manuals must exist in any particular format. This rulemaking would provide certificate holders flexibility regarding how their flight, ground, and maintenance personnel access electronic manuals, and to obtain information in a manner that reflects current technological capabilities. 1

Lastly, this rulemaking proposes amendments in §§ 91.1023, 121.139, 125.71, and 135.21 to update language that requires certificate holders accessing manuals in “other than printed form,” ensure there is a “compatible reading device available to those persons that provides a legible image” or “a system that is able to retrieve the maintenance information and instructions in the English language.” The FAA proposes to replace this outdated language with a requirement that all manual information and instructions be displayed clearly and be retrievable in the English language.

The FAA's authority to issue rules on aviation safety is found in title 49 of the United States Code (U.S.C.). Subtitle I, section 106 describes the authority of the FAA Administrator. Section 106(f) vests final authority in the Administrator for carrying out all functions, powers, and duties of the Administrator relating to the promulgation of regulations and rules.

Subtitle VII, Aviation Programs, describes in detail the scope of the Agency's authority. Section 44701(a)(5) requires the Administrator to promulgate regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security. In addition, 49 U.S.C. 44701(d)(1)(A) specifically states the Administrator, when prescribing safety regulations, must consider the duty of an air carrier to provide service with the highest possible degree of safety in the public interest. Such authority applies to the oversight the FAA exercises to ensure safety of aviation operations, including review of manual information and instructions.

FAA regulations require operators subject to parts 91K, 121, 125, or 135 to prepare and keep current operations manuals for use and guidance of flight, ground operations, and management personnel. These manuals must contain specific information about operations and must include the names of management personnel; copies of operations specifications; and many procedures for weight and balance calculations, accident notifications, airworthiness determinations, reporting mechanical irregularities, maintenance, and refueling. 2 Manuals ensure appropriate employees and contractors providing service for an operator are aware of the necessary steps for operating, moving, and servicing an aircraft in a safe manner.

Operators currently use electronic and internet-based technology to provide their flight, ground, and maintenance personnel with access to the manuals in a variety of formats, including electronic flight bags (EFB) and portable electronic devices (PED). Such technology has caused many operators to rely on manuals in electronic format, rather than accessing paper manuals.

Current manual requirements in applicable FAA regulations do not appropriately accommodate the use of electronic manuals. For example, the requirement that each page in a manual display the date it was last revised creates unnecessary barriers for operators that use electronic manuals. Specifically, electronic manuals in formats including Extensible Markup Language (XML) or Hypertext Markup Language (HTML) are not always paginated, making it unclear how to comply with this requirement.

Further, the requirement that some certificate holders “carry” appropriate parts of the manual on each aircraft when away from their principal base of operations does not reflect current technology. The FAA established this requirement when operators were only able to carry those manuals aboard airplanes to be used by personnel at out stations. 3 Prior to the advent of electronic manuals and the internet, the requirement to carry physically the ground servicing and maintenance parts of the manual aboard an airplane was necessary to ensure the manual was available to personnel at out stations or other locations away from the certificate holder's principal base of operations. Those personnel at out stations did not always have their own manuals, or access to necessary manuals, so they relied on the airplane to carry the manuals to them. Technological advancements have now rendered this prescriptive requirement unnecessary because accessing electronic manuals is significantly easier for flight, ground, and maintenance personnel.

Lastly, the language that requires operators accessing manuals in “other than printed form,” to ensure there is a “compatible reading device available to those persons that provides a legible image” or “a system that is able to retrieve the maintenance information and instructions in the English language” is outdated. The FAA promulgated this text during an era when certificate holders used microfiche technology to store and read manual information. Overall, the existing requirements do not reflect current technology.

In addition to requirements to establish manuals and have them contain specific information, FAA regulations also require manuals to remain up-to-date. Sections 91.1025, 121.135, 125.73, and 135.23 require each manual to display the date it was last revised on the revised page. The FAA established this requirement when operators used paper manuals; as a result, the requirement does not accommodate electronic manuals, which may not have traditional pages.

Including revision dates on each page is a means of ensuring flightcrew members and inspectors have current information pertinent to operations. When utilizing paper manuals, the only method to verify that the manual is current is to look at the revision date on each page. With electronic manuals, however, operators can efficiently provide updates to a manual, and personnel can access the most recent manual in real time via a web portal. Personnel and inspectors may be able to identify the revision date of the manual on an electronic device using the date the manual was last downloaded or the date the manual was last accessed through a web portal.

Operators conducting operations under parts 91K, 121, 125, or 135 are currently permitted to use manuals that are in electronic or paper format. The FAA has approved the use of electronic manuals for these operators through the use of Operation Specification (OpSpec) A025 or Management Specification (MSpec) MA025. 4 For example, the FAA has issued eight part 91K operators MSpec MA025 for electronic signatures, electronic recordkeeping systems and electronic manual systems. 5 In addition, the FAA is aware that certificate holders operating under part 121 currently provide their flightcrew members with access to the manual in a variety of formats, including EFBs  6 and PEDs. 7 At least 58 part 121 operators have authorization under OpSpec A025 for the use of electronic manuals. 8 Further, the FAA has issued 27 part 125 certificate holders and A125 letter of deviation authority (LODA) holders an OpSpec A025 to allow the use of electronic signatures, electronic recordkeeping systems, and electronic manual systems. 9 Moreover, the FAA has issued at least 471 part 135 certificate holders an OpSpec A025 for the use of electronic manuals. 10

As previously mentioned, the FAA promulgated the requirement to display the revision date on each revised page of the manual when manuals were not available in electronic form. The current requirement does not contemplate the developments in technology, which have provided operators with options for various electronic formats for manuals. This proposed rule would ensure operators that operate under the current inaccurate revision display date requirement, and that may use manuals in electronic formats, such as XML or HTML, are able to comply easily with the requirement to display a revision date, in a manner that is consistent with updated manual display technology.

The introductory paragraphs of §§ 91.1025, 125.73, and 135.23 set forth the requirement that manuals have the date of the last revision on each revised page. Section 121.135(a)(3) contains similar language, requiring the manual to “have the date of last revision on each page concerned.” The date of revision display for all four sections does not reflect use of manuals in an electronic format that does not have traditional pages.

For years, the air carrier industry has recommended updates to § 121.135(a)(3). In 2017, the FAA tasked the Aviation Rulemaking Advisory Committee (ARAC) to consider (1) recommendations on existing regulations that are good candidates for repeal, replacement, or modification and (2) recommendations on regulatory action identified in FAA's regulatory agenda. The ARAC working group provided the FAA a report, (ARAC Input to Support Regulatory Reform of Aviation Regulations), that characterized the requirement in § 121.135(a)(3) as “outdated, unnecessary or ineffective.” The ARAC Input to Support Regulatory Reform of Aviation Regulations report recommended removing the requirement to have a date of last revision on each page, because no page numbers exist in electronic documents formatted in XML or HTML, which are the two main formats used in electronic manuals. 11

In addition to input on the ARAC Input to Support Regulatory Reform of Aviation Regulations report, at least one major air carrier has petitioned for, and received, an exemption to permit use of electronic digital technology to display the revision date in lieu of having the last revision date on each page of the manual. 12 In granting the exemption, the FAA determined the electronic retrieval of technical data improved data accessibility, quality control, and speed of distribution, which could result in enhanced safety and rapid access to data. The FAA also acknowledged that traditional printed pages may not always exist within an electronic system, and that other acceptable means are available to determine the revision status. The FAA determined under 49 U.S.C. 44701(f) that granting an exemption from the requirement of § 121.135(a) was in the public interest. The FAA also stated in the exemption that it intended to clarify the requirement in a future rulemaking.

As previously discussed, §§ 91.1025, 125.73, and 135.23 have introductory paragraphs that require manuals to have the date of the last revision on each page. The FAA proposes amending these introductory paragraphs to state that each manual accessed in paper format must display the date of last revision on each page and that each manual accessed in electronic format must display the date of last revision in a manner in which a person can immediately ascertain it. The FAA proposes similar revisions to § 121.135, as it contains the same language requiring manuals have the date of last revision on each page revised. In this regard, the FAA proposes to revise § 121.135(a) such that it includes the same regulatory text as it proposes to add to the other regulatory sections as discussed above. This proposed rule would also remove § 121.135(a)(3) because it contains the requirement to “have the date of last revision on each page concerned,” which would be duplicative of the proposed language in § 121.135(a). As a result, this proposed rule would designate § 121.135(a)(4) as § 121.135(a)(3).

The FAA recognizes that manuals may be divided into many parts, some of which may be available in paper form and some in electronic form. The FAA does not propose to include language describing this in the regulatory text. This proposed rule would require that, if a manual is divided into parts, the date of last revision for each part must be immediately available in either paper form or electronic form, as applicable.

Allowing flexibility in displaying the date of last revision for an electronic manual is consistent with applicable safety standards that apply to the FAA and to operators under 49 U.S.C. 44701. This proposed rule would provide flexibility for the revision display date for electronic manuals, but would not remove the underlying requirement that the date of revision be displayed and ascertainable to the viewer of the manual.

To conform with the purpose of this proposed rule, the FAA proposes to further amend the introductory paragraph of § 125.73. While all of the above referenced sections currently contain the requirement concerning the date of last revision on each revised page, the introductory paragraph of § 125.73 includes an additional requirement that each manual have the “revision number” on each revised page.

The manual revision requirement in the introductory paragraph of § 125.73 should be consistent with the requirement in the associated sections in parts 91K, 121, and 135. Furthermore, displaying the date of the last revision on each page for paper manuals and in a manner in which a person can immediately ascertain for electronic manuals is sufficient to ensure flightcrew members and inspectors are able to identify the date of last revision or ensure the manual is up-to-date. Therefore, the FAA proposes amending the introductory paragraph of § 125.73 to remove the requirement that each manual include the “revision number” on each revised page.

Sections 91.1023, 121.139, and 135.21  13 require operators to carry appropriate parts of the manual on board each airplane for use by ground, flight, or maintenance personnel. The requirement includes an exception. In part 121, certificate holders need not carry maintenance parts of the manual on the airplane if en route to specified stations at which they conduct all scheduled maintenance. In parts 91K and 135, the exception applies to the approved aircraft inspection program manual.

The FAA established this requirement when operators did not have the means to readily provide access to manuals, other than to carry those manuals aboard airplanes to be used by personnel at out stations. 14 Prior to the advent of electronic manuals and the internet, the requirement to carry physically the ground servicing and maintenance parts of the manual aboard an airplane was necessary to ensure the manual was available to personnel at out stations or other locations away from the operator's principal base of operations. Those personnel at out stations did not always have their own manuals, nor access to manuals, so they relied on each airplane to deliver the appropriate manuals.

While these regulations allow operators to carry this manual in electronic form, 15 the underlying requirement to carry appropriate parts of the manual on board each airplane for use by ground, flight, or maintenance personnel is no longer necessary. Most operators already provide personnel at all stations with access to the appropriate manuals necessary for servicing the airplane. Therefore, these personnel do not need to rely on the incoming airplane to carry the manual to them.

Section 121.139 sets forth the specific manual carriage requirements for certificate holders conducting supplemental operations. Under § 121.139(a), certificate holders conducting supplemental operations must carry appropriate parts of the manual on each airplane when away from their principal base of operations and the appropriate parts must be available for use by ground and flight personnel. In addition, § 121.139(a) currently contains requirements specific to the maintenance part of the manual. Specifically, paragraph (a) requires that, if the certificate holder carries aboard an airplane all or any portion of the maintenance part of its manual in other than printed form, they must also carry a compatible reading device that produces a legible image of the maintenance information and instructions or have a system that is able to retrieve the maintenance information in the English language. However, § 121.139(b) states that if a certificate holder is able to perform all scheduled maintenance at the specified stations at which it keeps maintenance parts of the manual, it does not have to carry those parts of the manual aboard the airplane en route to those specific stations.

Similarly, §§ 91.1023 and 135.21 state that if a program manager (part 91K) or certificate holder (part 135) conducts airplane inspections or maintenance at specified stations or facilities where it keeps the approved inspection program manual available, it is not required to carry the manual aboard the airplane en route to those stations.

Under the existing regulatory text, program managers and certificate holders must “carry” maintenance parts of the manual aboard the airplane in electronic or paper form. Requiring tangible maintenance portions of a manual to be physically aboard an aircraft during flight is unnecessary because this information is available at the stations to which an operator conducts operations.

The 2017 ARAC Input to Support Regulatory Reform of Aviation Regulations report asserted that no safety justification exists for continuing to require physical carriage of maintenance information on the airplane because most certificate holders use manuals that are available electronically. 16 In addition, the report recommended the FAA modify the regulation to allow certificate holders to use any type of media or means to make appropriate parts of the manual available, as needed.

For years, the air carrier industry has recommended that the FAA make amendments to § 121.139 that reflect the new technology used to access manuals at out stations. Certificate holders expressed their viewpoint that carrying maintenance parts of the manual aboard airplanes is unnecessary. For example, Airlines for America (A4A) recommended the FAA change the requirement to apply only to parts of the manual that are essential to flightcrews. 17 They stated the promulgation of the rule preceded the advent of instant global communications, which now make it possible for certificate holders to maintain and transmit relevant parts of the manual with the most recent updates at virtually any time and location in the world. A4A recommended the FAA amend the regulation to enable certificate holders to conduct supplemental operations without carrying parts of the manual that are not required or that essential flightcrews do not utilize.

In addition, in 2004, in response to the FAA's published notice in the Federal Register asking the public to advise the FAA on which regulations the FAA should amend, the FAA received 97 comments. 18 One such comment, from the National Air Carrier Association, suggested that the FAA delete § 121.139 entirely because it is unnecessary, given current developments in technology. 19

Furthermore, several major air carriers have petitioned the FAA for exemption from the requirement in § 121.139 or requested an interpretation of the requirement, 20 in which they expressed concern about carrying the appropriate parts of the maintenance manual aboard the airplane. These petitions for exemption and requests for interpretation contend that a certificate holder's ability to keep the manual stored electronically will result in the manual always being available to ground and maintenance personnel. The petitions and requests assert that the focus of the requirement should be on availability and accessibility of the manual, rather than the manual being physically located on the airplane. They also emphasize that certificate holders have policies and procedures to ensure personnel have access to the manual information, even in the event of an electronic malfunction.

The requirements of §§ 91.1023, 121.139, and 135.21 should reflect the current ability to access the manual using electronic devices, to download the manual or access it via the internet. The proposed amendments to §§ 91.1023, 121.139, and 135.21 would give certificate holders flexibility to use technology in providing access to the electronic manual. Specifically, this proposed rule would remove the requirement that certificate holders “carry” appropriate parts of the manual on each airplane when away from its principal base of operations. This proposed rule would replace the word “carry” or “carried” in the aforementioned sections with the requirement to ensure parts of the manual associated with personnel's assigned duties are accessible for flight, ground, and maintenance personnel, “at all times when those personnel are performing their duties.” This proposed language would ensure personnel always have access to the necessary information while performing their assigned duties. This proposed language achieves the objective of the existing language of §§ 91.1023, 121.139, and 135.21 because it ensures that wherever a certificate holder conducts its operations, the flight, ground, and maintenance personnel have access to the necessary parts of the manual.

The FAA acknowledges that these proposed revisions to §§ 91.1023, 121.139, and 135.21 could result in reliability concerns regarding certificate holders' ability to maintain consistent access to its manuals, e.g., during electronic or internet outages. However, the proposed text requires personnel always have access to the relevant manual's information when they are performing their assigned duties. By using performance-based language to require certificate holders ensure availability when these personnel are performing their assigned duties, the proposed regulatory text indicates certificate holders should maintain policies and procedures to address circumstances in which an electronic or internet outage may occur.

The previously discussed amendments to § 121.139 would result in the removal of paragraphs (a) and (b), replacing them with a single paragraph. Further, the FAA proposes to amend § 121.139 by changing the section heading to read “Manual accessibility: Supplemental operations.” The FAA does not propose any changes to the section headings of §§ 91.1023, 125.71, or 135.21 because they do not contain similar language.

Sections 91.1023(g), 121.139(a), 125.71(f), and 135.21(g) require that, when manuals exist in other than printed form, certificate holders must carry compatible reading devices that provide legible images of maintenance information and instructions. In addition, certificate holders must have a system that is able to retrieve the maintenance information and instructions in the English language. The FAA promulgated these requirements when certificate holders used microfiche technology to ensure the information was readable, or retrievable, in the English language.

This proposed rule would amend §§ 91.1023(g), 121.139, 125.71(f), and 135.21(g) to require that all manual information and instructions be displayed clearly and be retrievable in the English language. Removing the compatible reading device requirement is appropriate because electronic manuals do not require a separate, compatible reading device to view the manual information. This proposed rule would require all manual information and instructions be accessible to the appropriate personnel, and appear in a manner in which they can read and comprehend the necessary provisions. Due to FAA oversight of certificate holders' manuals, such manual information and instructions must be readable and retrievable in the English language for the FAA to review and approve the manual. Therefore, the requirement that all manual information and instructions under §§ 91.1023, 121.139, 125.71, and 135.21 be readable and retrievable in the English language codifies current practice and brings this regulatory requirement up-to-date.

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $158,000,000, using the most current (2020) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.

In conducting these analyses, the FAA has determined that this proposed rule: (1) would result in benefits that justify costs; (2) is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) would not have a significant economic impact on a substantial number of small entities; (4) would not create unnecessary obstacles to the foreign commerce of the United States; and (5) would not impose an unfunded mandate on State, local, or tribal governments, or on the private sector.

The FAA estimates the proposed rulemaking would not result in additional costs to affected operators that conduct operations under parts 91K, 121, 125, and 135. The proposal would provide flexibility for the efficient use of electronic manuals for these operators. The proposed requirements would also ensure consistency for manual requirements for these operators. These flexibilities may reduce administrative costs of maintaining and providing manual accessibility to these operators. The FAA determines the proposal would not adversely affect safety.

This proposed rulemaking would update the manual display requirements for these affected operators to accommodate electronic manuals. In particular, this proposal would remove the requirement to have the date of last revision on each page concerned as it applies to operators using electronic manuals. This proposed rulemaking would add a separate requirement to allow operators using electronic manuals flexibility in displaying the date of last revision, while maintaining the existing requirement for operators with paper manuals.

This proposal would also revise the current requirement to physically carry appropriate parts of the manual aboard airplanes for these operators. As a result, operators would have flexibility regarding how flight, ground, and maintenance operators use electronic manuals, and provide access to each manual's information in a manner that reflects current technological capabilities.

Based on information from industry, affected operators currently provide their flightcrew personnel with access to manuals in electronic formats, including EFBs and PEDs. In addition, most operators currently provide ground and maintenance personnel at their stations access to the manual information necessary for ground handling and servicing of aircraft through electronic devices such as computers and PEDs.

The FAA expects the incremental changes from this proposed rulemaking would provide additional flexibilities to these operators for the efficient use of electronic manuals with no additional costs. These flexibilities may result in savings from avoided costs to these operators of maintaining and providing access to manuals for flightcrew, ground and maintenance personnel. The FAA did not identify data to quantify with certainty the incremental savings of this proposed rulemaking and the flexibilities it would provide to operators conducting operations under parts 91K, 125, and 135 affected operators.

The ARAC report provided information and insight on the potential costs and savings related to certain part 121 operators conducting operations to ensure appropriate parts of the manual are available for use by ground and maintenance personnel. 21 The report found technological advances and the availability of internet connections have eliminated the need for paper manuals to these operators.

The report identified potential cost savings would include a reduction in weight through the elimination of paper manuals compared to equipment associated with non-paper manuals and a reduction in time auditing, updating and printing paper manuals. In the report, one A4A member reports annual costs of approximately $500,000 because they claim the current regulation for operators of part 121 airplanes creates a requirement for paper manuals. 22 If this is representative of current costs for all 64 affected part 121 operators, 23 then the estimated annual savings would be $32,000,000 (= $500,000 × 64). Over a five-year period of analysis, the present value savings would be approximately $146.6 million at a three percent discount rate or approximately $132.2 million at a seven percent discount rate. The FAA notes that this cost saving estimate is conservative because the ARAC report only provided information for one part 121 operator and this proposal also affects operators in parts 91K, 125, and 135 service.

The FAA requests information and data that can be used to quantify additional savings of this proposed rulemaking. Please provide references and sources for information and data.

The changes in this proposed rulemaking would not have an adverse impact on safety because flightcrew members or inspectors would continue to be able to identify and ensure the manual or appropriate part is up-to-date. Likewise, the proposed changes to manual accessibility to these operators would have no adverse impact on safety because flight, ground and maintenance personnel would have access to the necessary parts of the manual wherever these operators conducts their operations.

In addition, the FAA has determined no adverse safety implication would result from the proposal for flightcrews and other personnel because such personnel are required to have access to parts of the manual that are appropriate to their assigned duties when they are performing those duties. This proposed rule alone would not result in new logistical issues related to connectivity because much of the current baseline maintenance activities rely on connectivity. In addition, as discussed in the ARAC report, in the unlikely event that connectivity is problematic or the on-ground electronic means is interrupted, maintenance activities would temporarily halt. While this may affect operations, it would ensure that no adverse effect on safety occurs. The FAA invites comments on these findings.

The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504, Sept. 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

This proposal would remove the requirement to have the date of last revision on each page concerned, as it applies to parts 91K, 121, 125, and 135 operators using electronic manuals and add a separate requirement that allows operators using electronic manuals flexibility in displaying the date of last revision, while maintaining the requirement for operators using paper manuals. This proposed rulemaking would also revise the current requirement to carry appropriate parts of the manual aboard airplanes for these operators. As a result, this proposal would provide operators with flexibility regarding how flight, ground, and maintenance personnel access the appropriate parts of the manual. The proposed rulemaking, therefore, would enable these operators to use electronic manuals efficiently and provide access to the manual information in a manner that reflects current technological capabilities.

The proposed rulemaking would not result in additional costs to affected operators. The proposed rulemaking does not mandate the use of an electronic format for manuals. Rather, the proposal would provide flexibility for the efficient use of electronic manuals. Such flexibility may reduce administrative costs of maintaining and providing manual accessibility to these operators. In addition, the FAA estimates that some operators would not incur savings from this proposed rule because they might currently benefit from these flexibilities.

Therefore, as provided in 5 U.S.C. 605(b), the head of the FAA certifies that this proposed rulemaking would not result in a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this proposed rulemaking and determined that it would have only a domestic impact and therefore would not create obstacles to the foreign commerce of the United States.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. The FAA determined that the proposed rulemaking would not result in the expenditure of $158,000,000 or more by State, local, or tribal governments, in the aggregate, or the private sector, in any one year.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. This proposed rule would not include any new requirement for information collection or changes to existing information collections associated with this proposed rule. The existing information collection associated with all part 121 manual requirements was approved under OMB control number 2120-0008, Part 121 Operating Requirements: Domestic, Flag, and Supplemental Operations. The information collection estimates the cost for the original manual for original certification, and the cost of manual revisions. The information collection attributes the burden associated with manual revision to § 121.133 and does not attribute any burden to § 121.139. The FAA has determined this proposed rulemaking would not require any adjustment in the estimate of public or government burden under the Paperwork Reduction Act.

The existing information collection associated with all part 135 manual requirements was approved under OMB control number 2120-0039, Part 135—Operating Requirements: Commuter and On-demand Operations and Rules Governing Persons on Board such Aircraft. This collection attributes the burden with manuals to § 135.21. The FAA has determined this proposed rule would not require any adjustment in the estimate of public or government burden under the Paperwork Reduction Act.

The existing information collection associated with all part 125 manual requirements was approved under OMB control number 2120-0085, Certification and Operations: Airplanes with Seating Capacity of 20 or More Passenger Seats or Maximum Payload of 6,000 Pounds or More—14 CFR part 125. This collection associates the burden with manuals to § 125.71. The FAA has determined this proposed rulemaking would not require any adjustment in the estimate of public or government burden under the Paperwork Reduction Act.

The existing information collection associated with all 14 CFR part 91 subpart K (91K) was approved under OMB control number 2120-0684, Fractional Ownership Programs. This collection attributes the burden with manuals to § 91.1023. The FAA has determined this proposed rulemaking would not require any adjustment in the estimate of public or government burden under the Paperwork Reduction Act.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed ICAO Standards and Recommended Practices, and identified no differences with any standards and recommended practices.

FAA Order 1050.1F (Jul. 16, 2015) identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6f for regulations and involves no extraordinary circumstances.

The FAA has analyzed this proposed rulemaking under the principles and criteria of Executive Order 13132, Federalism. The Agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government and therefore, would not have federalism implications.

The FAA analyzed this proposed rulemaking under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

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

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

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

A copy of this notice of proposed rulemaking, all comments received, any final rule, and all background material may be viewed online at https://www.regulations.gov using the docket number listed above. A copy of this proposed rule will be placed in the docket. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at https://www.federalregister.gov and the Government Publishing Office's website at https://www.govinfo.gov. A copy may also be found at the FAA's Regulations and Policies website at https://www.faa.gov/regulations_policies.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:

Section 104(b) of the Consumer Product Safety Improvement Act of 2008 (CPSIA) requires the Commission to adopt mandatory standards for durable infant or toddler products. 15 U.S.C. 2056a(b)(1). Mandatory standards must be “substantially the same as” voluntary standards, or may be “more stringent” than voluntary standards, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the products. Id. Mandatory standards may be based, in whole or in part, on a voluntary standard.

Pursuant to section 104(b)(4)(B) of the CPSIA, if a voluntary standards organization revises a standard that has been adopted, in whole or in part, as a consumer product safety standard under CPSIA section 104, it must notify the Commission. The revised voluntary standard then shall be considered to be a consumer product safety standard issued by the Commission under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), effective 180 days after the date on which the organization notifies the Commission (or a later date specified by the Commission in the Federal Register ) unless, within 90 days after receiving that notice, the Commission responds to the organization that it has determined that the proposed revision does not improve the safety of the consumer product covered by the standard, and therefore, the Commission is retaining its existing mandatory consumer product safety standard. 15 U.S.C. 2056a(b)(4)(B).

Under this authority, in 2012 the Commission issued a mandatory safety rule for infant swings. The rulemaking created 16 CFR part 1223, which incorporated by reference ASTM F2088-12a, Standard Consumer Safety Specification for Infant Swings. 77 FR 66703 (Nov. 7, 2012). The mandatory standard included performance requirements and test methods, as well as requirements for warning labels and instructions, to address hazards to children. Since promulgation of the final rule, ASTM has revised the voluntary standard for infant swings six times, and the Commission has issued three direct final rules to update the mandatory standard for infant swings to incorporate by reference the latest version of ASTM F2088:

• On June 24, 2013, the Commission published a direct final rule to update part 1223 to reflect incorporation of ASTM F2088-13, with no modifications (78 FR 37706).

• On January 19, 2021, the Commission published a direct final rule to update part 1223 to reflect incorporation of ASTM F2088-20, with no modifications (86 FR 4961).

• On October 28, 2021, the Commission published a direct final rule to update part 1223 to reflect incorporation of ASTM F2088-21, with no modifications (86 FR 59609).

In May 2022, ASTM published a revised version of the incorporated voluntary standard. On July 05 2022, ASTM notified the Commission that it had approved and published the revised version of the voluntary standard. CPSC staff is assessing the revised voluntary standard to determine, consistent with section 104(b)(4)(B) of the CPSIA, its effect on the safety of consumer products covered by the standard. The Commission invites public comment on that question to inform staff's assessment and any subsequent Commission consideration of the revisions in ASTM F2088-22. 1

The existing voluntary standard and the revised voluntary standard are available for review in several ways. ASTM has provided on its website ( https://www.astm.org/CPSC.htm ), at no cost, a read-only copy of ASTM F2088-22 and a red-lined version that identifies the changes made to ASTM F2088-21. Likewise, a read-only copy of the existing, incorporated standard is available for viewing, at no cost, on the ASTM website at: https://www.astm.org/READINGLIBRARY/. Interested parties can also download copies of the standards by purchasing them from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959; phone: 610-832-9585; https://www.astm.org. Alternatively, interested parties can schedule an appointment to inspect copies of the standards at CPSC's Division of the Secretariat, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, telephone: 301-504-7479; email: cpsc-os@cpsc.gov.

Comments must be received by July 28, 2022. Because of the short statutory time frame Congress established for the Commission to consider revised voluntary standards under section 104(b)(4) of the CPSIA, CPSC will not consider comments received after this date.

Section 1922B of title 38, United States Code, requires VA to issue policies under a new program of veterans' life insurance beginning on January 1, 2023. Consistent with 38 U.S.C. 1922B and other statutes in the NSLI subchapter (38 U.S.C. 1901-1929), VA proposes to implement this new program of insurance by amending 38 CFR part 8 as set forth below.

Current 38 CFR 8.0(e) defines the term “guardian” to mean “any representative certified by the appropriate Veterans Service Center Manager, under [38 CFR 13.55], to receive benefits in a fiduciary capacity on behalf of the insured or the beneficiary, or to take the actions listed in [38 CFR] 8.32.” We note that § 13.55 was removed in 2018, see 83 FR 32716, 32738 (July 13, 2018), but current § 8.0(e) essentially refers to a VA-appointed fiduciary, as defined in current § 13.20 (defining the term “fiduciary” as “an individual or entity appointed by VA to receive VA benefits on behalf of a beneficiary for the use and benefit of the beneficiary and the beneficiary's dependents”). The current definition of “guardian,” therefore, only allows a VA-appointed fiduciary to take the actions that are enumerated in § 8.32. Some of these actions include applying for a life insurance policy, reinstating a lapsed policy, and cash surrendering a policy. 38 CFR 8.32(a), (b), (f). Private insurers allow state-appointed guardians and attorneys-in-fact who hold power of attorney for an individual as their principal to take these same actions. VA proposes to revise § 8.0(e) to include within the definition of the term “guardian,” not only VA-appointed fiduciaries, but also state-appointed guardians and conservators, as well as attorneys-in-fact ( i.e., persons holding power of attorney). However, VA also proposes to clarify that if a VA-appointed fiduciary and either a state-appointed guardian/conservator or attorney-in-fact are not the same individual and both attempt to take conflicting actions on an incompetent insured's policy, the VA-appointed fiduciary shall have the exclusive authority to take actions on the policy. In that scenario, VA would not allow the state-appointed guardian/conservator or attorney-in-fact to take actions on the insurance policy unless VA removes the policyholder's fiduciary or the state-appointed guardian/conservator or attorney-in-fact is appointed as the VA fiduciary. These amendments would align VA procedures with commercial insurance practices and would afford those caring for incompetent insureds—whether they are VA-appointed fiduciaries, state-appointed guardians/conservators, or attorneys-in-fact—greater authority over VA life insurance actions. The amendments would also resolve potential conflicts between a VA-appointed fiduciary and either a state-appointed guardian/conservator or an attorney-in-fact.

VA proposes to add a new paragraph (f) to 38 CFR 8.0 that would define the term “Veterans' Affairs Life Insurance (VALife)” to mean “insurance that is issued under section 1922B of title 38 U.S.C.” The title of the legislation that created VALife, “Modernization of Service-Disabled Veterans Insurance,” and its statutory heading in section 1922B, “Service-Disabled Veterans Insurance,” are similar to the name of VA's existing life insurance program for service-disabled veterans, which Congress renamed “Legacy Service-Disabled Veterans' Insurance” when it authorized the creation of VALife. See 38 U.S.C. 1922; Public Law 116-315, Title II, § 2004(b)(1), (c)(1) (2021). VA has issued policies for Legacy Service-Disabled Veterans' Insurance, formerly known as Service-Disabled Veterans' Insurance (SDVI), since 1951 and will continue to provide such insurance coverage even after it closes to new issues on December 31, 2022. See 38 U.S.C. 1922(d)(1) (“The Secretary may not accept any application by a Veteran to be insured under this section after December 31, 2022.”). Policyholders could be confused by the similarities in program names and legislative and statutory headings. For purposes of clarity, VA proposes to define VALife to mean the new program of life insurance authorized by 38 U.S.C. 1922B to distinguish it from the renamed SDVI program.

VA would require veterans applying for VALife to submit an application online or through another medium prescribed by the Secretary. Therefore, VA proposes to add a new paragraph (g) to § 8.0 that would define an application for VALife as a properly completed application form submitted online or through another medium prescribed by the Secretary. Cf. 84 FR 138, 139 (Jan. 18, 2019) (defining a “claim” for benefits under 38 CFR part 3); see also, e.g., Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs, 818 F.3d 1336, 1350 (Fed. Cir. 2016) (holding that 38 U.S.C. 5101(a)(1) affirmatively grants the Secretary authority to prescribe the forms of application by claimants).

VA proposes to define the term “beneficiary” that is contained in 38 U.S.C. 1922B(e) to include both principal and contingent beneficiaries. Although section 1922B(e) refers broadly to “a beneficiary,” we interpret that reference to include both principal and contingent beneficiaries because both commercial industry insurers and all existing Government life insurance programs allow insureds to name both types of beneficiaries. In the event that the insured has designated a contingent beneficiary, and the principal beneficiary does not file a claim, predeceases the insured, or is barred from receiving payment by operation of the slayer's rule, then the contingent beneficiary will be paid before an alternate beneficiary in the order of precedence is eligible to file a claim and receive payment.

Current 38 CFR 8.1(b) states that the effective date of an insurance policy that is issued under 38 U.S.C. 1922(a) is the date that a valid application and premium payment are delivered to VA. VA proposes to amend the heading of current 38 CFR 8.1 to clarify that insurance policies issued under VALife would have the same effective date as policies issued under SDVI. This amendment is consistent with the longstanding VA practice of determining the effective date of coverage for other Government life insurance programs based on the delivery of an application and an initial premium payment. However, we propose to revise § 8.1(a) to clarify that benefits due under an SDVI policy are payable any time after the effective date, but benefits due under a VALife policy are payable any time two years after the effective date.

VA also proposes to add a note 3 to current paragraph (b) that would state that when veterans apply for insurance coverage through an electronic medium, the date of delivery of the premium payment shall be the date of the valid authorization of the premium payment. The note would also state that in cases where the authorization does not result in the required premium payment because there were insufficient funds to cover the full initial premium amount, the delivery date of the premium payment shall be the date that the full initial premium amount is received by VA.

Current paragraph (c) provides three different options for SDVI policyholders to choose as an effective date other than the date of delivery described in paragraph (b). VA proposes to clarify that the effective date options for SDVI would not be available for VALife, and, therefore, VA would amend paragraph (c) to state that it does not apply to VALife.

Section 1922B(c)(3)(A) states that if a veteran dies during the two-year period described in paragraph (2), the Secretary shall pay to the beneficiary of the veteran the amount of premiums paid by the veteran under this section, plus interest. VA proposes to add a new paragraph (e) to current 38 CFR 8.2 to explain that if a veteran enrolls in VALife for an amount less than the statutory maximum and elects to apply for additional coverage at a later date and dies before completing the two-year waiting period for the additional VALife coverage amount, the beneficiary shall be refunded premiums that were paid for the additional VALife coverage, plus interest, in accordance with 38 U.S.C. 1922B(c)(3)(A). VA also proposes to explain in new paragraph (e) that if an insured surrenders or cancels a VALife policy during this same two-year period, the United States would not return to the insured the premiums that were paid to purchase the coverage. VA's proposal is consistent with the practice of commercial insurers, as comparable permanent insurance policies do not return the full amount of premiums that an insured pays when the insured surrenders policy coverage during the policy's waiting and enrollment period.

Current § 8.6 establishes the rules for calculating the time period for applying and reinstating life insurance coverage and paying premiums. VA proposes to revise the title of § 8.6 to read “Calculation of Time Period; Veteran's Age,” designate the current text as paragraph (a), and make some technical edits to the text in re-designated paragraph (a). Section 1922B(a)(3)(A) requires that veterans apply for VALife coverage prior to age 81, except in limited circumstances described in subparagraph (B). VA proposes to add new paragraph (b) to § 8.6 to state as follows: “For VALife, the premium will be determined using the age of the veteran at his or her nearest birthday on the effective date of the policy.” If the veteran's next birthday is within six months of the effective date of the policy, his or her premium will be calculated at one year older than the current age. If the veteran's birthday is more than six months after the effective date of the policy, his or her current age will be used to calculate the premium. For example, if the veteran's birthday is February 16, 1980, and the effective date of the policy is June 1, 2022, the premium age is 42. However, if the same veteran's policy's effective date is December 1, 2022, the premium age is 43. When VA developed VALife, VA actuaries established the premium table for the insurance program using this standard because it is consistent with commercial life insurance practices and with VA's currently administered programs. However, VA proposes, for the purposes of determining a veteran's eligibility for insurance under section 1922B(a)(3), to use the age of the veteran at his or her last birthday prior to application because it would provide a veteran approaching age 81 with additional time to elect insurance coverage and still be consistent with the VALife statute (38 U.S.C. 1922B(a)(3)(B)). VA proposes to add a new paragraph (c) to make this clarification. Although these proposed amendments contain different standards, it is common in the private insurance market for the term “age” to have a variety of meanings for insurance calculations ( see 12A Couch on Ins. § 179:13, n.1.), and VA is explaining in this proposed rulemaking how it would calculate the insured's age for different purposes.

VA also proposes to add a new paragraph (d) that would clarify under what conditions a veteran who is beyond age 81 would be eligible to receive VALife coverage. The VALife statute states that “[t]he Secretary may not grant insurance to a veteran . . . unless . . . the veteran submits the application for such insurance before the veteran attains 81 years of age [or] . . . with respect to a veteran who has attained 81 years of age . . . the veteran filed a claim for compensation under chapter 11 of this title before attaining such age . . . [and] based on such claim, and after the veteran attained such age, the Secretary first determines that the veteran has a service-connected disability.” 38 U.S.C. 1922B(a)(3). VALife was created to replace SDVI, and under SDVI, a veteran can be granted insurance if he or she applies within two years following an initial service-connection determination for any disability. 38 U.S.C. 1922(a). However, eligibility for SDVI is not restricted to the two-year period following the veteran's first service-connection determination. VAOPGCPREC 77-90 (finding of service connection for a disability on a secondary basis establishes a new period for filing an application for SDVI). Although veterans are not eligible for SDVI by reason of an increase in a rating, see id., a grant of individual unemployability under 38 CFR 4.18, or a finding of incompetency under 38 CFR 3.353, the two-year period to apply for SDVI is not limited by age, and a veteran who receives a grant of service connection for a new and different disability becomes eligible again to apply for SDVI. Consistent with Congressional intent in allowing issuance of SDVI coverage at advanced ages following an initial determination of service connection for a disability, VA proposes to allow any veteran who applies for service connection for a disability, either on a primary or secondary basis, before attaining age 81 but receives an initial grant on that claim after attaining age 81 to apply for VALife if the veteran otherwise meets the criteria of 38 U.S.C. 1922B(a)(3)(B). For example, a veteran who applies for service connection for a disability at age 79, but does not receive an actual grant of service connection on that claim until the age of 82, would have a two-year time period to apply for VALife and would receive full VALife coverage if they paid their premiums throughout the requisite two-year waiting period. VA's interpretation of this section of the VALife statute would encourage participation in VALife and provide life insurance coverage to veterans who are unlikely to be able to purchase life insurance in the private, commercial market due to their age and disabilities.

VA also proposes to limit the issuance of a VALife policy under 38 U.S.C. 1922B(a)(3)(B) to a maximum age of 95. This proposal aligns the maximum issue age for a VALife policy with the maximum issue age of an SDVI ordinary life policy, as determined by VA in line with common industry practice to ensure financial soundness and based on the 1941 Commissioners Standard Ordinary Table of Mortality, which is referenced in 38 U.S.C. 1922. VALife's guaranteed acceptance whole life coverage most closely mirrors ordinary life policies issued under the SDVI program, which is being closed and replaced with the new program.

Current 38 CFR 8.7 allows a policyholder to reinstate coverage within five years of the date of lapse of coverage if the policyholder submits all outstanding premiums and evidence of good health and pays interest on the arrearage if not reinstated within six months from lapse. VA proposes to revise § 8.7(a) to indicate that the paragraph does not apply to VALife policies. In conjunction with that change, VA proposes to add a new paragraph (e) to § 8.7 to state that coverage issued under VALife that lapses for non-payment of premiums may only be reinstated if the former policyholder submits all premiums in arrears from their respective due dates, plus interest, to reinstate the coverage within two years of the date of the lapse and has not yet attained the age of 81. This two-year period is consistent with the two-year enrollment and waiting period from the effective date of a VALife policy until the coverage can pay a death benefit (38 U.S.C. 1922B(c)(2)) and is intended to incentivize policyholders with lapsed policies to reinstate coverage as soon as possible after lapsing. VA believes that a shorter reinstatement period is also warranted because VA would not require policyholders to submit proof of insurability to reinstate coverage. Veterans who do not reinstate VALife coverage within this two-year period would remain eligible to reapply for VALife but would be required to wait two years between their re-enrollment date and the date the full VALife coverage amount takes effect.

VA is proposing in new § 8.7(e) to make the maximum age for reinstatement age 80, which is our publicized maximum issue age for VALife. This is consistent with the practice of the commercial insurance industry, in which most companies do not allow reinstatement beyond the maximum issue age for their products. While we are allowing issues up to age 95 for VALife, that is only for the category of veterans who applied for service connection for a new condition prior to age 81 but did not receive notification of an initial award for that new condition until after attaining age 81. Given that we are not requiring proof of satisfactory health as a condition for reinstatement, the maximum age limitation, in addition to the two-year time limit after lapse to apply, will mitigate the risk of anti-selection.

For clarity, VA also proposes to revise the heading of § 8.7 from “Reinstatement of National Service Life Insurance except insurance issued pursuant to section 1925 of title 38 U.S.C.” to “Reinstatement.”

Paragraph (a)(3) of 38 CFR 8.10 states that Government life insurance programs issued under 38 U.S.C. 1904(c) and 1922(a) do not pay dividends. VALife is only authorized to issue coverage on a non-participating basis (38 U.S.C. 1922B(a)(5)(A)(i)), which means that the new insurance program would not issue policies that pay dividends to its policyholders. See 5 Couch on Ins. § 69:46 n.1 (participating plan provides for a refund of a portion of the premium as a dividend at the end of the policy period). For purposes of clarity, VA proposes to revise paragraph (a)(3) by adding a reference to section 1922B.

VA proposes to clarify that § 8.11(a) and (b), which provides that cash value, paid-up insurance, and extended term insurance, except as provided in § 8.14(b), shall become effective at the completion of the first policy year on certain NSLI plans and explains the process for requesting a cash surrender, respectively, would not apply to VALife.

VA also proposes to amend § 8.11 to add a new paragraph (j) stating that cash values for VALife would be developed using the 1941 Commissioners Standard Ordinary Mortality Table (1941 CSO Table) and an interest rate of 3.5 percent per annum. The 1941 CSO Table is the same mortality basis as that prescribed for cash values in SDVI (38 U.S.C. 1922(a)(1)).

VA would also state in the new paragraph (j) that VA would not be obligated to pay cash value in the event of lapse or surrender during the two-year waiting period prior to VALife coverage becoming payable for a death benefit because cash value does not begin to accrue until the two-year waiting period elapses. Additionally, if an insured enrolls in VALife for an amount less than the statutory maximum and elects to apply for additional coverage at a later date, the cash value on the additional amount of coverage would not begin accruing until the end of the two-year waiting period for the additional coverage. Full coverage would not be in force under VALife until the two-year waiting period has been completed. See 38 U.S.C. 1922B(c)(2). And consistent with other life insurance programs currently administered by VA, VA would transfer any premiums paid for coverage that lapses or is surrendered, to the credit of the VALife revolving fund that is established under 38 U.S.C. 1922B(a)(5)(A)(i) to support the financial health of VALife.

VA would also explain in new paragraph (k) the process for an insured to cash surrender a policy and the process to issue the surrender value of the policy to the insured. VA would apply a process similar to cash surrenders under existing policies as explained in § 8.11(b), with the following differences: (1) applications would be primarily through an electronic medium in order to decrease administrative costs; and (2) indebtedness and paid up additions would not apply as the VALife program does not initially plan to provide policy loans and is a non-participating program without dividends. Dividends are required in order to issue paid up additions.

For clarity, VA also proposes to revise the heading of this section from “Cash value and policy loan” to “Cash value.”

Section 1906 of title 38, United States Code, permits VA to establish regulations pertaining to loans. VA has implemented that authority in 38 CFR 8.13, and paragraph (a) of that section requires VA to lend to an insured monies borrowed against the security of the cash value of his or her insurance coverage, subject to the insured meeting various criteria. VALife is designed to be completely self-supporting, unlike other programs of NSLI which receive an annual subsidy to cover excess claims expenses. See 38 U.S.C. 1919(a) (authorizing appropriation for NSLI), 1922(a)(5) (authorizing appropriations in part for SDVI). Because VA has determined that it would not be actuarially sound to offer loans under VALife at its inception on January 1, 2023, VA proposes to amend § 8.13 by adding a new paragraph (e) that would state that the United States shall only issues loans to VALife policyholders if VA determines that doing so is administratively and actuarially sound for the VALife Program.

Under 38 CFR 8.14 and 8.15, insureds who fail to pay premiums do not go into lapse status and instead remain covered under their policies according to the extended term value of their coverage, or their coverage amount is reduced to a level that is consistent with the policyholder's accrued cash value. Both regulations were promulgated to prevent life insurance coverage from lapsing and are consistent with the intent of preventing policyholders from going into lapse status. However, VA proposes to add language to each section stating that, for purposes of VALife, such extended term or reduced paid-up insurance would not be available to veterans during the VALife two-year waiting period. VA also proposes to add language clarifying that as soon as the two-year waiting period ends, VALife policyholders would enjoy the protection of extended term and reduced paid-up insurance coverage that both sections provide to policyholders covered under other Government life insurance programs.

The Federal common-law slayer's rule is a public policy that precludes killers from benefitting from their victims' deaths. 76 FR 77455 (Dec. 13, 2011). The statutes governing the NSLI programs of life insurance are silent regarding whether a beneficiary who killed the decedent, or a family member of such a beneficiary, may receive the proceeds of the victim's insurance coverage. Some courts have applied the slayer's rule to claims for NSLI proceeds. Shoemaker v. Shoemaker, 263 F.2d 931 (6th Cir. 1959). However, there are a variety of different requirements for applying the slayer's rule depending on the state where the killing occurred. See Annot., 26 A.L.R.2d 987 (1952 & 1998 Supp.); 4 Couch on Ins. § 62:19. Therefore, VA believes it is necessary to establish a uniform Federal rule for applying the slayer's rule to Government life insurance death proceeds for all NSLI policies, including VALife. VA has previously codified a slayer's rule in 38 CFR 9.5 that pertains to the payment of death proceeds under Servicemembers' Group Life Insurance. For purposes of consistency, VA proposes to amend 38 CFR 8.19 to designate the existing text as paragraph (a) and to create a new paragraph (b) that would state that where a beneficiary has been determined to have intentionally and wrongfully killed the insured, the provisions found in 38 CFR 9.5(e) shall be applied to payment of insurance. Under what is known as the extended slayer's rule, some jurisdictions also disqualify members of a slayer's family, other than individuals also related to the victim, from receiving the proceeds of an insurance policy. 76 FR 77455. Consistent with § 9.5(e)(2), VA proposes to incorporate the extended slayer's rule into 38 CFR 8.19 in order to prevent killers from receiving even the indirect benefits of their wrongdoing by receiving or inheriting, through relatives, the financial benefits of the killing.

Veteran policyholders insured under 38 U.S.C. 1922(a) are eligible to maintain their insurance coverage during the initial two-year VALife enrollment period if they apply for VALife between January 1, 2023, and December 31, 2025. 38 U.S.C. 1922(d)(2)(A), (B). Although 38 U.S.C. 1922(d)(3) states that a veteran may not be insured under both programs simultaneously other than as provided by paragraph (2)(B), we interpret subsection (d)(3) to mean that a veteran may not be insured under both programs simultaneously except if a veteran who is insured under SDVI elects to be insured under VALife during the initial two-year enrollment period. Also, neither this statute nor the VALife statute addresses whether a policyholder who is insured under 38 U.S.C. 1922(a) is eligible to apply for VALife after December 31, 2025, if the policyholder surrenders his or her life insurance policy or informs VA that he or she desires to terminate coverage in order to become eligible for VALife. VA proposes to add new § 8.35 to 38 CFR part 8 that would explain the eligibility criteria for those insured under 38 U.S.C. 1922(a) to purchase VALife after December 31, 2025. Veterans would be eligible to purchase VALife coverage upon surrender or cancellation of the policy along with a written statement to VA that the policyholder desires to terminate his or her existing life insurance coverage in order to apply for VALife and initiate the two-year waiting period before VALife will pay a death benefit to the policyholder's beneficiary. This statement would be in a form that is prescribed by the Secretary.

Under 38 U.S.C. 1922B(a)(4)(A), a veteran may elect to be insured for between $10,000 and $40,000, in $10,000 increments. VA proposes to add a new § 8.36 to 38 CFR part 8 that would explain that veterans who do not elect the statutory maximum amount of VALife coverage may still apply for additional VALife coverage at a later date, but the two-year waiting period imposed by 38 U.S.C. 1922B(c)(2) must be satisfied before the additional coverage amount of VALife is in force. Allowing veterans to apply for additional VALife coverage would be an important feature of VALife for policyholders, as life circumstances may change, such as marriage or the birth of a child. These life events may create the need for additional coverage. However, the two-year waiting period allows for addressing any adverse selection risks while providing this flexibility to insureds. This is consistent with private, commercial insurance provider practices.

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). E.O. 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this proposed rule is not a significant regulatory action under E.O. 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This proposed rule would generally be small business neutral as it implements statutory provisions that only allow the United States to issue life insurance coverage to veterans with service-connected disabilities. 38 U.S.C. 1922B(a)(1) (“[T]he Secretary shall carry out a service-disabled veterans insurance program under which a veteran is granted insurance by the United States against the death of such individual occurring while such insurance is in force.”). Although there are statutes in 38 U.S.C. 1901-1988 that allow VA to purchase a large group life insurance policy from a private commercial insurer, those statutory authorities only apply to the Servicemembers' Group Life Insurance Program, which provides life insurance coverage to Service members and their dependents and former Service members, and they do not provide VA with the authority to purchase a group life insurance policy from a private insurer for purposes of providing VALife coverage. As such, the overall impact of this proposed rule would be of no benefit or detriment to small businesses, because these insurance policies would only be issued by the United States to veterans with service-connected disabilities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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

This proposed rule includes provisions constituting new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval.

OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing the collection of information or take such other action as is directed by OMB.

Comments on the new collections of information contained in this rulemaking should be submitted through www.regulations.gov. Comments should indicate that they are submitted in response to “RIN 2900-AR53; National Service Life Insurance—Veterans Affairs Life Insurance (VALife) Program Amendments” and should be sent within 60 days of publication of this rulemaking. The collections of information associated with this rulemaking can be viewed at: www.reginfo.gov/public/do/PRAMain.

OMB is required to make a decision concerning the collections of information contained in this rulemaking between 30 and 60 days after publication of this rulemaking in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the provisions of this rulemaking.

The Department considers comments by the public on new collection of information in—

• Evaluating whether the new collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;

• Evaluating the accuracy of the Department's estimate of the burden of the new collection of information, including the validity of the methodology and assumptions used;

• Enhancing the quality, usefulness, and clarity of the information to be collected; and

• Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

The collections of information associated with this rulemaking contained in 38 CFR 8.0(g), 8.7, 8.11, 8.19, 8.35 and 8.36 are described immediately following this paragraph, under their respective title.

Title: Application for Veterans' Affairs Life Insurance (VALife).

OMB Control No: 2900-XXXX (New/TBD).

CFR Provision: 38 CFR 8.0(g) and 8.36.

• Summary of collection of information: The new collection of information in proposed 38 CFR 8.0(g) and 8.36 would require individuals applying for or increasing VALife coverage to provide certain information to VA.

• Description of need for information and proposed use of information: The information would be used by VA to determine the eligibility of veterans with service-connected disabilities who elect to apply for, or increase, VALife coverage.

• Description of likely respondents: Veterans, veterans' VA-appointed fiduciaries, and veterans' state-appointed guardians and custodians and attorneys-in-fact.

• Estimated number of respondents: 185,000 annually.

• Estimated frequency of responses: One time per application.

• Estimated average burden per response: 10 minutes.

• Estimated total annual reporting and recordkeeping burden: Based on a projected 185,000 annual respondents and an average burden per response of 10 minutes, VA estimates a total annual reporting and recordkeeping burden of 30,833 hours.

• Estimated cost to respondents per year: VA estimates the total information collection burden cost to be $863,632 per year (30,833 burden hours for respondents × $28.01 per hour).*

Title: Veterans' Affairs Life Insurance (VALife) Policy Maintenance Form.

OMB Control No: 2900-XXXX (New/TBD).

CFR Provisions: 38 CFR 8.7, 8.11, and 8.19.

• Summary of collection of information: The new collection of information in proposed 38 CFR 8.7 would require an individual to use the new form to request reinstatement for VALife. The new collection of information in proposed § 8.11(k) would require an individual to use the new form to surrender the VALife policy and request payment of the cash value. An individual could also use the new form to request beneficiary changes on a VALife policy under proposed § 8.19(a).

• Description of need for information and proposed use of information: The information would be used by VA to reinstate a VALife policy or to complete a insured's request to surrender coverage under VALife.

• Description of likely respondents: Veterans, veterans' VA-appointed fiduciaries, and veterans' state-appointed guardians and custodians and attorneys-in-fact.

• Estimated number of respondents: 26,672 annually.

• Estimated frequency of responses: One action per form.

• Estimated average burden per response: 5 minutes.

• Estimated total annual reporting and recordkeeping burden: Based on a projected 26,672 annual respondents and an average burden per response of 5 minutes, VA estimates a total annual reporting and recordkeeping burden of 2,223 hours.

• Estimated cost to respondents per year: VA estimates the total information collection burden cost to be $62,266 per year (2,223 burden hours for respondents × $28.01 per hour).*

Title: Veterans' Affairs Life Insurance (VALife) Surrender/Conversion Form.

OMB Control No: 2900-XXXX (New/TBD).

CFR Provisions: 38 CFR 8.35.

• Summary of collection of information: The new collection of information in proposed 38 CFR 8.35 would require an individual to confirm their surrender of any current SDVI coverage at the time they apply for VALife.

• Description of need for information and proposed use of information: The information would be used by VA to surrender an existing SDVI policy so that a Veteran can apply for VALife.

• Description of likely respondents: Veterans, veterans' VA-appointed fiduciaries, and veterans' state-appointed guardians and custodians and attorneys-in-fact.

• Estimated number of respondents: 26,672 annually.

• Estimated frequency of responses: One action per form.

• Estimated average burden per response: 5 minutes.

• Estimated total annual reporting and recordkeeping burden: Based on a projected 26,672 annual respondents and an average burden per response of 5 minutes, VA estimates a total annual reporting and recordkeeping burden of 2,223 hours.

• Estimated cost to respondents per year: VA estimates the total information collection burden cost to be $62,266 per year (2,223 burden hours for respondents × $28.01 per hour).*

The Assistance Listing number and title for the program affected by this document is 64.103, Life Insurance for Veterans.

Denis McDonough, Secretary of Veterans Affairs, approved this document on June 30, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, VA is proposing to amend 38 CFR part 8 as set forth below:

The revision and additions read as follows:

The revisions and addition read as follows:

The revisions and addition read as follows:

The revisions and additions read as follows:

Throughout this document “we,” “us,” or “our” means the EPA.

The Clean Air Act (CAA or “Act”) requires the EPA to establish primary and secondary National Ambient Air Quality Standards (NAAQS or “standards”) for certain pervasive pollutants that “may reasonably be anticipated to endanger public health and welfare.”  1 The primary NAAQS is designed to protect public health with an adequate margin of safety, and the secondary NAAQS is designed to protect public welfare and the environment. The EPA has set standards for six common air pollutants, referred to as criteria pollutants, including ozone (O 3 ). These standards represent the air quality levels an area must meet to comply with the CAA.

Ozone is a gas created in the troposphere by chemical reactions between volatile organic compounds (VOC) and oxides of nitrogen (NO X ) in the presence of sunlight. Ground-level ozone can harm human health and the environment. Ozone exposure has been associated with increased susceptibility to respiratory infections, increased medication use by asthmatics, and increased health care visits, emergency department visits, and hospital admissions for individuals with respiratory disease. Ozone exposure may also contribute to metabolic diseases, such as diabetes, and premature death, especially in people with heart and lung disease.

In March 2008, the EPA strengthened the ozone NAAQS, establishing primary and secondary 8-hour ozone standards at a level of 0.075 ppm (“2008 ozone NAAQS” or “2008 ozone standards”). 2 The numerical level of the NAAQS had previously been set at 0.08 ppm. In October 2015, the EPA further strengthened the primary and secondary eight-hour ozone NAAQS from 0.075 parts per million (ppm) to 0.070 ppm (“2015 ozone NAAQS” or “2015 ozone standards”). 3 Both of these standards require that the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentration may not exceed the numerical level of the standard. Section 107(d) of the CAA requires the EPA to designate an area “nonattainment” if it is violating the standards or if it has sources contributing to a violation of the standards in a nearby area. The EPA designates areas for each standard separately, and makes determinations of attainment individually for each area and each standard. For ozone standards, the EPA classifies nonattainment areas as “Marginal,” “Moderate,” “Serious,” “Severe,” or “Extreme,” depending upon ambient air monitoring results calculated as an ozone design value of the area at the time of designation. 4 5 An ozone nonattainment area with a higher classification is subject to a greater number of, and more stringent, CAA planning and control requirements than lower classification areas, but the state is provided more time to attain the NAAQS. 6

The EPA is required to determine whether areas designated nonattainment attained the NAAQS by the applicable attainment date, and to take certain steps for areas that failed to attain. 7 For a concentration-based standard, such as the 2008 and 2015 ozone NAAQS, the determination of attainment or failure to attain is based on a nonattainment area's design value, as described below.

Under the EPA regulations at 40 Code of Federal Regulations (CFR) part 50, appendix P, the 2008 ozone NAAQS is attained at a monitor site when the design value, ( i.e., the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentration) does not exceed 0.075 ppm. The data handling convention in Appendix P dictates that concentrations shall be reported in parts per million to the third decimal place, with additional digits to the right being truncated. Thus, a computed 3-year average ozone concentration of 0.076 ppm is greater than 0.075 ppm and would exceed the standard, but a design value of 0.0759 is truncated to 0.075 and attains the 2008 ozone NAAQS.

The EPA's determination of attainment is based upon data that have been collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA's Air Quality System (AQS) database. 8 Ambient air quality monitoring data for the 3-year period preceding the year of the attainment date ( i.e., 2018-2020 for the 2008 ozone NAAQS Serious areas with an attainment date of July 20, 2021) must meet the data completeness requirements in Appendix P. 9 The completeness requirements are met for the 3-year period at a monitoring site if daily maximum 8-hour average concentrations of ozone are available for at least 90 percent of the days within the ozone monitoring season, on average, for the 3-year period, and no single year has less than 75 percent data completeness. Additional information on data handling conventions for the 2008 ozone NAAQS is found in the Technical Support Document (TSD) accompanying this rulemaking. 10

Under the EPA regulations at 40 CFR part 50, appendix U, the 2015 ozone NAAQS is attained at a site when the design value ( i.e., the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentration) does not exceed 0.070 ppm. The data handling convention in Appendix P dictates that concentrations shall be reported in “ppm” to the third decimal place, with additional digits to the right being truncated. Thus, a computed 3-year average ozone concentration of 0.071 ppm is greater than 0.070 ppm and would exceed the standard, but a design value of 0.0709 is truncated to 0.070 and attains the 2015 ozone NAAQS.

The EPA's determination of attainment is based upon data that have been collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA's AQS database. Ambient air quality monitoring data for the 3-year period preceding the attainment date ( i.e., 2018-2020 for the 2015 ozone NAAQS Marginal areas with an attainment date of August 3, 2021) must meet the data completeness requirements in Appendix U. 11 The completeness requirements are met for the 3-year period at a monitoring site if daily maximum 8-hour average concentrations of ozone are available for at least 90 percent of the days within the ozone monitoring season, on average, for the 3-year period, and no single year has less than 75 percent data completeness. Additional information on data handling conventions for the 2015 ozone NAAQS is found in the technical support document (TSD) accompanying this rulemaking.

Because the design value is based on three complete calendar years of data, attainment must occur no later than December 31 of the year prior to the attainment date. Accordingly, for these areas in California with attainment dates of July 20, 2021 and August 3, 2021, the areas must show attainment by December 31, 2020. Our proposed determination is therefore based upon the 2018-2020 design value for each area, which is based upon complete, quality-assured and certified ozone monitoring data from calendar years 2018, 2019, and 2020. The data the EPA is using to calculate the 2018-2020 design values for these areas are provided in the accompanying TSD, which can be found in the docket for this rulemaking.

This notice includes proposed determinations of attainment by the attainment date for eight areas in California. 12 For the 2008 ozone NAAQS, this proposal addresses the Ventura County area and the Nevada County (Western part) area (or “Western Nevada County area”), both of which are classified Serious for the 2008 ozone NAAQS, with an attainment date of July 20, 2021. For the 2015 ozone NAAQS, this proposal addresses the Butte County, Calaveras County, San Luis Obispo (Eastern part) (or “Eastern San Luis Obispo”), Sutter Buttes, Tuloumne County, and Tuscan Buttes areas. These six areas are classified Marginal for the 2015 ozone NAAQS, with an attainment date of August 3, 2021. In separate rulemakings, the EPA has recently proposed determinations of attainment by the attainment date and findings of failure to attain for the 2008 and 2015 ozone NAAQS for other areas in California and nationwide. 13 The EPA omitted some areas in California from the national notices because the California Air Resources Board (CARB) had submitted exceptional events demonstrations for events in 2018 and 2020. The EPA required additional time to review these claimed exceptional events, as the EPA's actions on these demonstrations would affect the areas' design values. These demonstrations and the EPA's evaluation of and action on these demonstrations is discussed in section II.B of this proposed rulemaking.

The Ventura County nonattainment area consists of the main portion of Ventura County (excluding the Channel Islands of Anacapa and San Nicolas Islands), within California's South Central Coast Air Basin. The Western Nevada County area consists of the western portion of Nevada County, within the Mountain Counties Air Basin in northern California. For more information about these areas, see the TSD) for California for designations for the 2008 ozone NAAQS, which is included in the docket for this rulemaking. 14 For the 2008 ozone NAAQS, the Ventura County area and Nevada County (Western part) area were designated nonattainment effective July 20, 2012. 15

At the time of designation, in a separate action, the EPA assigned classification thresholds and attainment dates based on the severity of each nonattainment area's ozone problem, determined by the area's design value. 16 The Ventura County area was initially classified Serious, with an attainment date of July 20, 2021. The Western Nevada County area was initially classified Marginal, with an initial attainment date of July 20, 2015. Effective June 3, 2016, the EPA determined that the Western Nevada County area had failed to attain the 2008 ozone NAAQS by the July 20, 2015 Marginal attainment date. This finding resulted in the area being reclassified to Moderate nonattainment, with a new attainment date of July 20, 2018. 17 Effective September 23, 2019, the EPA determined that the Western Nevada County area had failed to attain the 2008 ozone NAAQS by the July 20, 2018 Moderate attainment date. 18 This finding resulted in the area being reclassified to Serious nonattainment, with an attainment date of July 20, 2021.

The Butte County area consists of the entirety of Butte County, in California's Sacramento Valley Air Basin, and areas of Indian country belonging to the Berry Creek Rancheria of Maidu Indians of California, the Enterprise Rancheria of Maidu Indians of California, the Mechoopda Indian Tribe of Chico Rancheria, and the Mooretown Rancheria of Maidu Indians of California. The Calaveras County area consists of the entirety of Calaveras County, in California's Mountain Counties Air Basin, and areas of Indian country belonging to the California Valley Miwok Tribe. The Eastern San Luis Obispo area consists of the eastern portion of San Luis Obispo County, and lies within California's South Central Coast Air Basin. The Sutter Buttes area is a mountaintop area that comprises the area of the Sutter Buttes above 2,000 feet (610 meters) in elevation in Sutter County. The Tuloumne County area consists of the entirety of Tuolumne County, in the Mountain Counties Air Basin, and areas of Indian country belonging to the Chicken Ranch Rancheria of Me-Wuk Indians of California and Tuolumne Band of Me-Wuk Indians of the Tuolumne Rancheria of California. The Tuscan Buttes area is a mountaintop area that comprises the area of the Tuscan Buttes above 1,800 feet (549 meters) in elevation, in Tehama County. For more information about these areas, see the Technical Support Document (TSD) for California for designations for the 2015 ozone NAAQS, which is included in the docket for this rulemaking. 19 Effective August 3, 2018, the EPA designated the Butte County, Calaveras County, Eastern San Luis Obispo, Sutter Buttes, Tuloumne County and Tuscan Buttes areas nonattainment for the 2015 ozone NAAQS. 20 The areas were classified Marginal for this standard, and required to attain the 2015 ozone NAAQS as expeditiously as practicable, but no later than three years from the date of designation as nonattainment, i.e., August 3, 2021. 21

The EPA is proposing this action to fulfill its statutory obligation under CAA section 181(b)(2) to determine whether select ozone nonattainment areas with attainment dates in 2021 attained the standard by their applicable attainment dates. Specifically, we are proposing to determine that the Ventura County and Western Nevada County nonattainment areas attained the 2008 ozone NAAQS by the attainment date of July 20, 2021 and that the Butte County, Calaveras County, Eastern San Luis Obispo, Sutter Buttes, Tuolumne County and Tuscan Buttes areas attained the 2015 ozone NAAQS by the attainment date of August 3, 2021. As discussed in section I.D of this proposed rulemaking, the EPA has addressed proposed determinations for other areas in California and around the country in separate rulemakings. This proposed determination is based on complete, quality-assured, certified data for the three-year period before the attainment date for each area (see design value data presented in Tables 1 and 2 below).

We are also proposing to determine that, if we finalize these proposed determinations of attainment by the attainment date for the Nevada County (Western part) and Ventura nonattainment areas, then the requirement for the state to have contingency measures for failure to meet Reasonable Further Progress (RFP) and failure to attain for the 2008 ozone NAAQS will no longer apply, because contingency measures would never be needed given the attainment of the NAAQS. (see section II.D).

The EPA evaluated air quality data to determine if these nonattainment areas attained or failed to attain the 2008 and 2015 ozone NAAQS by their applicable attainment dates. The design values for the 2018-2020 period for the two areas classified Serious for the 2008 ozone NAAQS are shown in Table 1, and the design values for the six areas classified Marginal for the 2015 ozone NAAQS are shown in Table 2.

As explained in section I.B, the 2008 ozone NAAQS is met at an ambient monitoring site when the design value for the area does not exceed 0.075 parts per million (ppm). The 2015 ozone NAAQS is met at an ambient monitoring site when the design value for the area does not exceed 0.070 parts per million (ppm). The design values shown in Table 1 show that the Ventura County and Western Nevada County areas have met the 2008 ozone NAAQS. The design values shown in Table 2 show that the Butte County, Calaveras County, Eastern San Luis Obispo County, Sutter Buttes, Tuolumne County and Tuscan Buttes areas have met the 2015 ozone NAAQS. The data the EPA used to calculate the 2018-2020 design values for these areas are provided in the TSD for this action, which can be found in the docket for this rulemaking. Also found in the docket for this rulemaking are design value reports from the EPA's AQS database, and data certification materials from CARB for the relevant years.

On March 22, 2007, the EPA adopted a final rule, “Treatment of Data Influenced by Exceptional Events,” also known as the Exceptional Events Rule (EER), to govern the review and handling of certain air quality monitoring data for which the normal planning and regulatory processes are not appropriate. 22 On October 3, 2016, the EPA adopted revisions to this rule. 23 Under the EER, the EPA may exclude data from use in determinations of NAAQS exceedances and violations if a state demonstrates that an “exceptional event” (EE) caused the exceedance or exceedances. 24 Before the EPA can exclude data from these regulatory determinations, the state must flag the data in the EPA's AQS database, notify the EPA of the state's intent to submit an EE demonstration, and, after public notice and opportunity for comment, submit a demonstration to the EPA to justify the exclusion. The EPA considers the demonstration and concurs or nonconcurs with the state's flag. If the EPA concurs that the exceedance was due to an exceptional event covered under the EER, the data is excluded from regulatory consideration, including from a determination of whether the area attained a NAAQS by its attainment date.

In submittals dated September 3, 2021, September 17, 2021, November 18, 2021, and December 8, 2021, CARB provided documentation for ozone exceedances that occurred at the monitors listed in Tables 3 and 4 below on multiple days in 2018 and 2020, and which the state had flagged as due to wildfire ozone exceptional events. 25 These events occurred during the July 26-August 10, 2018 and August 18-October 4, 2020 time periods. A full list of days identified as exceptional events at each monitor is included in Tables 1 and 2 in the TSD for this rulemaking.

The EPA reviewed the documentation submitted by the State and concurred with CARB's determinations that the exceedances identified by CARB in 2018 and 2020 and listed in Tables 1 and 2 in the TSD accompanying this rulemaking were caused by wildfire ozone exceptional events, and that these exceedances meet the criteria for exclusion from regulatory consideration under the EER. Accordingly, the EPA concurred with the exclusion flags for the days flagged in 2018 and 2020 for these areas and is excluding the monitored exceedances associated with these exceptional events from use in determinations of exceedances and violations, including the evaluation of whether the nonattainment areas considered in this notice have attained the relevant ozone NAAQS by the attainment date in accordance with CAA section 181(b)(2)(A).

A concurrence letter notifying CARB of our decision was sent on May 4, 2022. 26 Included with the letter were TSDs setting forth in detail the bases for the EPA's concurrences. 27 The state's demonstrations and the EPA's concurrence letter and accompanying TSDs are included in the docket for this rulemaking. Also included in the docket for this rulemaking are the state's Initial Notification of Intent (INI) documents, notifying the EPA of the state's intent to submit EE demonstrations, and the EPA's responses to the INIs.

For the reasons set forth in the concurrence letter and its enclosures, the EPA is excluding from regulatory consideration data showing exceedances due to exceptional events at the monitoring sites, as summarized below in Tables 3 and 4, in this determination of attainment. For additional information, including a list of each day excluded at each monitoring site, please see the TSD for this rulemaking action and the TSDs accompanying the EPA's May 4, 2022 concurrence letter.

If the EPA finalizes these proposed determinations, the areas will remain designated nonattainment, and will retain their current classifications. A determination of attainment by the attainment date does not have the effect of redesignating an area to attainment. Redesignation of an area to attainment requires that an area has met all applicable requirements of CAA section 110 and Part D, and that the area has submitted, and the EPA has approved, a redesignation request and maintenance plan. 28

Based on our proposed finding of attainment by the applicable attainment date, we are also proposing to find that the CAA requirement for a state implementation plan (“SIP”) to include contingency measures to be implemented in the event the area fails to attain (“attainment contingency measures”) or fails to meet reasonable further progress milestones (“RFP contingency measures”) will no longer apply to the Ventura County and Western Nevada County nonattainment areas for purposes of the 2008 ozone NAAQS.

Under CAA section 172(c)(9), attainment contingency measures must be implemented only if the area fails to attain by the attainment date. Therefore, if we finalize the determination that the Ventura County and Western Nevada County nonattainment areas have attained the 2008 ozone standard by the applicable attainment date, then attainment contingency measures for this NAAQS would never be required to be implemented, regardless of whether the areas continue to attain the NAAQS. 29 This proposed finding will not prevent the EPA, in the event that an area subsequently violates the NAAQS, from exercising its authority under the CAA to address violations of the NAAQS. 30

Additionally, the purpose of the RFP requirements under the CAA is to ensure progress toward attainment of the applicable NAAQS by the applicable attainment date. Consistent with this purpose, under CAA section 182(g), ozone nonattainment areas classified “Serious” or higher are required to meet RFP emission reduction “milestones” and to demonstrate compliance with those milestones, except when the milestone coincides with the attainment date and the standard has been attained. 31 This specific statutory exemption from milestone compliance demonstration (MCD) submittals for areas that attained by the attainment date indicates that Congress intended that a finding that an area attained the standard—the finding made in a determination of attainment by the attainment date—would serve as a demonstration that RFP requirements for the area have also been met. In other words, if a Serious or above area has attained the NAAQS by the attainment date, then the RFP milestones have been sufficiently achieved. Accordingly, such a finding of attainment by the attainment date would also indicate that RFP contingency measures could not be triggered and are therefore no longer necessary. 32

On February 28, 2022, the EPA found that California's MCD submittal for Ventura County and Western Nevada County adequately demonstrated that the applicable 2020 milestone for the 2008 ozone NAAQS had been met for these areas. 33 Notably, 2020 is the last applicable milestone prior to the attainment date for areas classified Serious for the 2008 ozone NAAQS. Therefore, if we finalize the determination that the Ventura County and Western Nevada County nonattainment areas have attained the 2008 ozone standard, RFP contingency measures for this NAAQS would never be required to be implemented, regardless of whether the area continues to attain the NAAQS. This proposed finding will not prevent the EPA, in the event that an area subsequently violates the NAAQS, from exercising its authority under the CAA to address violations of the NAAQS. 34

The state submitted contingency measures as part of the Final 2016 Ventura County Air Quality Management Plan and the Ventura County portion of the 2018 Updates to the California State Implementation Plan, and as part of the 2018 Western Nevada County Ozone Plan, respectively.The EPA will address these measures, as appropriate, in separate actions, taking into consideration this proposed finding of attainment by the applicable attainment date and resulting determination that the attainment and RFP contingency measure requirements are no longer required for these areas for purposes of the 2008 ozone NAAQS.

The EPA believes that this proposed action will not have disproportionately high or adverse human health or environmental effects on minority, low income, or indigenous populations. The purpose of this rule is to determine whether two nonattainment areas in California attained the 2008 ozone standard by their Serious area attainment date, and to determine whether six nonattainment areas in California attained the 2015 ozone standard by their Marginal area attainment date. These determinations are required under CAA section 181(b)(2) for purposes of implementing the 2008 and 2015 ozone standards and there are no particular facts or circumstances that would compel the EPA Administrator to consider information beyond the statutory criteria.

For the reasons articulated above, we are proposing to determine that:

• The Ventura County and Western Nevada County nonattainment areas attained the 2008 ozone NAAQS by the July 20, 2021 attainment date;

• The Butte County, Calaveras County, Eastern San Luis Obispo County, Sutter Buttes, Tuolumne County, and Tuscan Buttes nonattainment areas attained the 2015 ozone NAAQS by the August 3, 2021 attainment date; and

• The CAA requirement for the SIP to provide for contingency measures for attainment and RFP will no longer apply to the Ventura County and Western Nevada County nonattainment areas for the 2008 ozone NAAQS.

We note that we are not proposing a redesignation to attainment for any areas. The EPA would consider a redesignation to attainment for these areas following a submittal by the State of a formal redesignation request and maintenance plan.

Additional information about these statutes and Executive Orders can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

This rule does not impose any new information collection burden under the PRA not already approved by the OMB.

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

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments, or the private sector.

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

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”

The EPA has identified tribal areas within three of the nonattainment areas covered by this proposed rule, that would be potentially affected by this rule. Specifically, as discussed in section I.D, the Butte County, Calaveras County, and Tuolumne County nonattainment areas addressed in this proposal have tribes located within their boundaries. A full list of impacted tribes is included in section I.D and in the TSD for this action.

The EPA has concluded that the proposed rule may have tribal implications for these tribes for the purposes of Executive Order 13175, but would not impose substantial direct costs upon the tribes, nor would it preempt tribal law. If we finalize the determinations of attainment by the attainment date proposed in this notice, these determinations would also apply on tribal lands within the nonattainment areas. The nonattainment areas, including the tribal lands within the nonattainment areas, would remain designated nonattainment and would retain their existing classifications.

The EPA intends to notify the potentially affected tribes located within the boundaries of the nonattainment areas addressed in this proposal. Because our proposed action, if finalized, would not change the tribe's existing nonattainment designation or classification, we do not intend to offer government-to-government consultation on this proposal, however, we will initiate government-to-government consultation at the request of any of the tribes.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This proposed action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Upon review, the EPA did not identify any particular facts or circumstances that would indicate this action will have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. Upon review, the EPA did not identify any particular facts or circumstances that would indicate this action will have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations.

Furthermore, with respect to the determinations of whether areas have attained the NAAQS by the attainment date, the EPA has no discretionary authority to address environmental justice in these determinations. The CAA directs that within 6 months following the applicable attainment date, the Administrator shall determine, based on the area's design value as of the attainment date, whether the area attained the standard by that date. CAA section 181(b)(2)(A). Except for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law to either the next higher classification or the classification applicable to the area's design value.

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

Table 1 lists the rule addressed by this proposal, including the date on which it was adopted by the District and the date on which it was submitted to the EPA by the California Air Resources Board (CARB or “the State”). The TCAPCD is the air pollution control agency for Tuolumne County in California.

For areas designated nonattainment for one or more National Ambient Air Quality Standards (NAAQS), the applicable SIP must include preconstruction review and permitting requirements for new or modified major stationary sources of such nonattainment pollutant(s) under part D of title I of the Act, commonly referred to as Nonattainment New Source Review (NNSR). The rule listed in Table 1 contains the District's NNSR permit program applicable to new and modified major sources located in areas designated nonattainment for the 1997 and 2015 ozone NAAQS.

On February 3, 2022, the submittal for Rule 429 was deemed by operation of law to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

There are no previous versions of Rule 429 in the SIP.

Rule 429 is intended to address the CAA's statutory and regulatory requirements for NNSR permit programs for major sources emitting nonattainment air pollutants and their precursors.

The EPA's April 2004 designation of Tuolumne County as a nonattainment area for the 1997 8-hour ozone National Ambient Air Quality Standards (NAAQS) triggered the requirement for the District to develop and submit an NNSR program to the EPA for SIP approval. 1 Although the EPA revoked the 1997 8-hour ozone NAAQS effective April 6, 2015, 2 the NNSR requirements applicable to Tuolumne County based on its designation and classification for the revoked 1997 8-hour ozone NAAQS remain applicable in order to prevent future emissions from new and modified major stationary sources from increasing beyond the levels allowed, based on the area's prior designation and classification for the 1997 ozone NAAQS. Thus, because Tuolumne County was designated and classified as Moderate nonattainment for the 1997 8-hour ozone NAAQS, the District's NNSR program must satisfy the NNSR requirements applicable to Moderate ozone nonattainment areas, including the offset ratios identified in CAA section 182(b)(5). 3 Tuolumne County is also designated and classified as Marginal nonattainment for the 2015 8-hour ozone NAAQS and, therefore, subject to the NNSR requirements applicable to Marginal ozone nonattainment areas. 4 Submission of an NNSR program that satisfies the requirements of the Act and the EPA's regulations for Moderate ozone nonattainment areas, however, would satisfy the NNSR program requirements for Marginal ozone nonattainment areas. 5

Additional information regarding the District's nonattainment status for each pollutant is included in our Technical Support Document (TSD), which may be found in the docket for this rule.

The EPA reviewed Rule 429 for compliance with CAA requirements for: (1) stationary source preconstruction permitting programs as set forth in CAA part D, including CAA sections 172(c)(5) and 173; (2) the review and modification of major sources in accordance with 40 CFR 51.160-51.165 as applicable in Moderate ozone nonattainment areas; (3) the review of new major stationary sources or major modifications in a designated nonattainment area that may have an impact on visibility in any mandatory Class I Federal Area in accordance with 40 CFR 51.307; (4) SIPs in general as set forth in CAA section 110(a)(2), including 110(a)(2)(A) and 110(a)(2)(E)(i);  6 and (5) SIP revisions as set forth in CAA section 110(l) and 193. 7 8 Our review evaluated the submittal for compliance with the NNSR requirements applicable to Moderate ozone nonattainment areas, and ensured that the submittal addressed the NNSR requirements for the 1997 and 2015 ozone NAAQS.

With respect to procedural requirements, CAA sections 110(a)(2) and 110(l) require that revisions to a SIP be adopted by the state after reasonable notice and public hearing. Based on our review of the public process documentation included in the August 3, 2021 submittal of Rule 429, we find that the District has provided sufficient evidence of public notice, opportunity for comment, and a public hearing prior to adoption and submittal of these rules to the EPA.

With respect to the substantive requirements found in CAA sections 172(c)(5) and 173, and 40 CFR 51.160-51.165, we have evaluated Rule 429 in accordance with the applicable CAA and regulatory requirements that apply to NNSR permit programs under part D of title I of the Act for all relevant ozone NAAQS, including the 2015 ozone NAAQS. We find that Rule 429 satisfies these requirements as they apply to sources subject to the NNSR permit program requirements applicable to Moderate ozone nonattainment areas. We have also determined that this rule satisfies the related visibility requirements in 40 CFR 51.307. In addition, we have determined that Rule 429 satisfies the requirement in CAA section 110(a)(2)(A) that requires regulations submitted to the EPA for SIP approval be clear and legally enforceable, and we have determined that the submittal demonstrates, in accordance with CAA section 110(a)(2)(E)(i), that the District has adequate personnel, funding, and authority under state law to carry out these proposed SIP revisions.

Regarding the additional substantive requirements of CAA sections 110(l) and 193, our action will result in a more stringent SIP, while not relaxing any existing provision contained in the SIP. We have concluded that our action would comply with section 110(l) because our approval of Rule 429 will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other CAA applicable requirement. In addition, our approval of Rule 429 will not relax any pre-November 15, 1990 requirement in the SIP, and therefore changes to the SIP resulting from this action ensure greater or equivalent emission reductions of ozone and its precursors in the District. Accordingly, we have concluded that our action is consistent with the requirements of CAA section 193.

As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is proposing to approve the submitted rule because it fulfills the relevant CAA requirements, and strengthens the SIP. We have concluded that our approval of the submitted rule would comply with the relevant provisions of CAA sections 110(a)(2), 110(l), 172(c)(5), 173, and 193, 40 CFR 51.160-51.165, and 40 CFR 51.307.

If finalized as proposed, our action will be codified through revisions to 40 CFR 52.220 (Identification of plan-in part). In conjunction with the EPA's SIP approval of the District's visibility provisions for sources subject to the NNSR program as meeting the relevant requirements of 40 CFR 51.307, this action would also revise the regulatory provision at 40 CFR 52.281(d) concerning the applicability of the visibility Federal Implementation Plan (FIP) at 40 CFR 52.28 as it pertains to California, to provide that this FIP does not apply to sources subject to review under the District's SIP-approved NNSR program.

We will accept comments from the public on this proposal until August 15, 2022.

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 the District rule described in Section I.A. of this preamble. The EPA has made, and will continue to make, these materials available through www.regulations.gov and in hard copy at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the 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).

For additional information, see the direct final rule published in the “Rules and Regulations” section of this issue of the Federal Register .

EPA has explained the reasons for this action in the preamble to the direct final rule. For additional information, see the direct final rule published in the “Rules and Regulations” section of this issue of the Federal Register .

For additional information, see the direct final rule published in the “Rules and Regulations” section of this issue of the Federal Register .

On July 18, 2019, we published a proposed rule in the Federal Register entitled “Medicare and Medicaid Programs; Requirements for Long-Term Care (LTC) Facilities: Provisions to Promote Efficiency and Transparency” (84 FR 34737), which would revise the Medicare and Medicaid long-term care facility requirements that the Centers for Medicare & Medicaid Services had identified as unnecessary, obsolete, or excessively burdensome. This proposed rule aimed to increase the ability of health care professionals to apportion resources to improve resident care by eliminating or reducing requirements that could impede quality care or that divert resources away from providing high quality care.

Section 1871(a)(3)(B) of the Social Security Act (the Act) requires the Secretary of the Department of Health and Human Services (the Secretary) to publish a Medicare final rule no later than 3 years after the publication date of the proposed rule or interim final rule, as applicable, except under exceptional circumstances.

In such circumstances, the Secretary may vary the final rule publication timeline if the Secretary publishes a Federal Register notice of the different timeline, including a brief explanation of the justification for the variation, by no later than the previously established timeline. To meet the 3-year timeline, the final rule would have to be published by July 18, 2022. For the reasons discussed below, we are unable to publish the final rule by July 18, 2022.

Since the beginning of the COVID-19 Public Health Emergency (PHE), we have prioritized our efforts to address the immediate needs relevant to the COVID-19 pandemic by issuing appropriate regulatory changes to increase public health and safety, while taking into consideration ways to create flexibility and minimize unnecessary regulatory burdens. These efforts have required considerable focus and resources, especially to prioritize the publication of interim final rules relevant to the PHE and to provide guidance to health care facilities. In response to the proposed rule, we received over 1,500 timely comments from a variety of stakeholders. The commenters presented robust policy and technical issues for our consideration, which require extensive consultation and analysis. Likewise, we need to re-evaluate the policies and consider the comments provided in light of the current needs of residents, the impact of the COVID-19 PHE on long-term care facilities, and the current priorities of the Department of Health and Human Services related to health and safety and equity.

Therefore, this notice extends the timeline to finalize the provisions in the June 18, 2022 proposed rule for 1 year, until July 18, 2023.