Federal Register Vol. 83, No.58,

The Commission is proposing to revise its regulations at 11 CFR 100.26 and 110.11 regarding disclaimers on communications placed for a fee on the internet. The Commission may provide illustrative examples on the Commission's website during the comment period.

The Commission published a Notice of Proposed Rulemaking (“Technology NPRM”) in the Federal Register on November 2, 2016.1 The Technology NPRM comment period ended on December 2, 2016. The Commission received four comments in response to the Technology NPRM.2

One of the proposals in the Technology NPRM was to update the definition of “public communication” at 11 CFR 100.26. Section 100.26 currently defines “public communication” as excluding all internet communications, “other than communications placed for a fee on another person's website.” When the Commission promulgated this definition in 2006, it focused on websites because that was the predominant means of paid internet advertising at the time. The Commission analogized paid advertisements on websites to the forms of mass communication enumerated in the definition of “public communication” in the Federal Election Campaign Act, 52 U.S.C. 30101-46 (“the Act”), because “each lends itself to distribution of content through an entity ordinarily owned or controlled by another person.” internet Communications, 71 FR 18589, 18594 (Apr. 12, 2006) (“2006 internet E&J”); 52 U.S.C. 30101(22).

The Commission proposed to update the definition by adding communications placed for a fee on another person's “internet-enabled device or application.” The purpose of the proposed change was to reflect post-2006 changes in internet technology 3 —such as the development of mobile applications (“apps”) on smartphones and tablets, smart TV devices, interactive gaming dashboards, e-book readers, and wearable network-enabled devices such as smartwatches and headsets—and to make the regulatory text more adaptable to the development of future technologies. The Commission asked several questions about its proposed change, including whether the term “internet-enabled device or application” is a sufficiently clear and technically accurate way to refer to the various media through which paid internet communications can be sent and received; whether there is a better way to refer to them; and whether it would help to provide examples of such paid media.

The Commission received only one comment in response to this aspect of the Technology NPRM.4 The comment generally supported the proposed revision to the definition of “public communication” in section 100.26.5

The Commission has decided to reintroduce the proposed change to the definition of “public communication” in this rulemaking for the limited purpose of determining whether the term “internet-enabled device or application” is a sufficiently clear and technically accurate way to refer to the various media through which paid internet communications can be sent and received. The term is closely tied to the internet communication disclaimer requirements.6

On October 13, 2011, the Commission published in the Federal Register an Advance Notice of Proposed Rulemaking (“ANPRM”) soliciting comment on whether to modify disclaimer requirements at 11 CFR 110.11 for certain internet communications, or to provide exceptions thereto, consistent with the Act.7 The Commission received eight comments in response. Six of the commenters agreed that the Commission should update the disclaimer rules through a rulemaking, though commenters differed on how the Commission should do so.

On October 18, 2016, the Commission solicited additional comment in light of legal and technological developments during the five years since the ANPRM was published.8 The Commission received six comments during the reopened comment period, all but one of which supported updating the disclaimer rules. Commenters, however, differed on whether the Commission should allow modified disclaimers for all online advertisements or exempt paid advertisements on social media platforms from the disclaimer requirements.

On October 10, 2017, the Commission again solicited additional comment in light of recent legal, factual, and technological developments.9 During this reopened comment period, the Commission received submissions from 149,772 commenters (including persons who signed on to others' comments), of which 147,320 indicated support for updating or strengthening the disclaimer rules or other government action; 2,262 indicated opposition to such efforts; and 190 did not indicate a discernable preference.10

After considering the comments from all three comment periods and additional deliberation, the Commission now seeks comment on the proposed changes described in this notice. Other than the issues specified in this notice, the Commission does not, in this rulemaking, propose changes to any other rules adopted by the Commission in the internet Communications rulemaking of 2006.

A “disclaimer” is a statement that must appear on certain communications to identify who paid for it and, where applicable, whether the communication was authorized by a candidate. 52 U.S.C. 30120(a); 11 CFR 110.11; see also Disclaimers, Fraudulent Solicitations, Civil Penalties, and Personal Use of Campaign Funds, 67 FR 76962, 76962 (Dec. 13, 2002) (“2002 Disclaimer E&J”). The Supreme Court has recognized that disclaimer requirements may burden political speech, and thus must bear a substantial relation to a sufficiently important governmental interest. See Citizens United v. FEC, 558 U.S. 310, 366-67 (2010) (“Citizens United”) (citing Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976) (“Buckley”)).

The Court has found that the government's interest in mandating such disclaimers justifies the accompanying burden on political speech. For example, in approving the disclaimers at issue in Citizens United, the Court explained, “[d]isclaimer and disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign-related activities and do not prevent anyone from speaking. The Court has subjected these requirements to exacting scrutiny, which requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Id. (internal quotation marks and alterations removed). The Court also held that disclaimers “provide the electorate with information and insure that the voters are fully informed about the person or group who is speaking,” and stated that identifying the sources of advertising enables people “to evaluate the arguments to which they are being subjected.” Id. at 368 (internal quotations and alterations removed).

With some exceptions, the Act and Commission regulations require disclaimers for public communications: (1) Made by a political committee; (2) that expressly advocate the election or defeat of a clearly identified federal candidate; or (3) that solicit a contribution. 52 U.S.C. 30120(a); 11 CFR 110.11(a). Under existing regulations, the term “public communication” does not include internet communications other than “communications placed for a fee on another person's website.” 11 CFR 100.26. In addition to these internet public communications, “electronic mail of more than 500 substantially similar communications when sent by a political committee . . . and all internet websites of political committees available to the general public” also must have disclaimers. 11 CFR 110.11(a).

The content of the disclaimer that must appear on a given communication depends on who authorized and paid for the communication. If a candidate, an authorized committee of a candidate, or an agent of either pays for and authorizes the communication, then the disclaimer must state that the communication “has been paid for by the authorized political committee.” 11 CFR 110.11(b)(l); see also 52 U.S.C. 30120(a)(1). If a public communication is paid for by someone else, but is authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must state who paid for the communication and that the communication is authorized by the candidate, an authorized committee of the candidate, or an agent of either. 11 CFR 110.11(b)(2); see also 52 U.S.C. 30120(a)(2). If the communication is not authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must “clearly state the full name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication, and that the communication is not authorized by any candidate or candidate's committee.” 11 CFR 110.11(b)(3); see also 52 U.S.C. 30120(a)(3).

Every disclaimer “must be presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identity” of the communication's sponsor. 11 CFR 110.11(c)(1). While the Act and Commission regulations impose specific requirements for communications that are “printed” or that appear on radio or television, they do not specify additional requirements for disclaimers on internet advertisements. Compare 11 CFR 110.11(c)(1) (general “clear and conspicuous” requirement for all disclaimers), with 11 CFR 110.11(c)(2)-(4) (additional requirements for printed, radio, and television disclaimers) and 52 U.S.C. 30120(c)-(d) (specifications for printed, radio, and television disclaimers).

Commission regulations set forth limited exceptions to the general disclaimer requirements. For example, disclaimers are not required for communications placed on “[b]umper stickers, pins, buttons, pens, and similar small items upon which the disclaimer cannot be conveniently printed.” 11 CFR 110.11(f)(1)(i) (“small items exception”). Nor are disclaimers required for “[s]kywriting, water towers, wearing apparel, or other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable.” 11 CFR 110.11(f)(1)(ii) (“impracticable exception”).

The Commission first addressed disclaimers on internet communications in two 1995 advisory opinions regarding the application of the Act to internet solicitations of campaign contributions. See Advisory Opinion 1995-35 (Alexander for President); Advisory Opinion 1995-09 (NewtWatch PAC).11 The Commission determined that internet solicitations are “general public political advertising” 12 and, as such, they “are permissible under the [Act] provided that certain requirements, including the use of appropriate disclaimers, are met.” Advisory Opinion 1995-35 (Alexander for President) at 2 (characterizing conclusion in Advisory Opinion 1995-09 (NewtWatch PAC)). Later that year, the Commission stated in a rulemaking that “internet communications and solicitations that constitute general public political advertising require disclaimers,” adding that “[t]hese communications and others that are indistinguishable in all material aspects from those addressed in [Advisory Opinion 1995-09 (NewtWatch PAC)] will now be subject to” the disclaimer requirement. See Communications Disclaimer Requirements, 60 FR 52069, 52071 (Oct. 5, 1995).

The Bipartisan Campaign Reform Act of 2002, Public Law 107-155, 116 Stat. 81 (2002) (“BCRA”), added specificity to the disclaimer requirements (including “stand by your ad” requirements for certain radio and television communications), expanded the scope of communications covered by the disclaimer requirements, and defined a new term, “public communication,” that did not reference the internet. See 52 U.S.C. 30101(22), 30120; see also 2002 Disclaimer E&J, 67 FR at 76962. The Commission promulgated rules to implement BCRA's changes to the disclaimer provisions of the Act and the new statutory definition of “public communication.” See 2002 Disclaimer E&J, 67 FR at 76962; Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 FR 49064, 49111 (July 29, 2002) (“Non-Federal Funds E&J”). The 2002 rules incorporated the term “public communication” to describe the general reach of the disclaimer rules and applied the disclaimer requirements to political committees' websites and distribution of more than 500 substantially similar unsolicited emails. Other than these two specific types of internet-based activities by political committees, however, internet communications were excluded from the regulatory definition of “public communication” and, therefore, outside the scope of the disclaimer requirements that apply to public communications. See 2002 Disclaimer E&J, 67 FR at 76963-64; Non-Federal Funds E&J, 67 FR at 49111.

In 2006, after a court challenge to the regulatory definition of “public communication,” the Commission revised its rules to include internet communications “placed for a fee on another person's website” in the definition of “public communication” and, therefore, within the scope of the disclaimer rule. See 2006 internet E&J, 71 FR at 18594; see also Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) (holding, among other things, that Commission could not wholly exclude internet activity from the definition of “public communication”). The Commission explained that, under the revised definition, “when someone such as an individual, political committee, labor organization or corporation pays a fee to place a banner, video, or pop-up advertisement on another person's website, the person paying makes a `public communication.'” 2006 internet E&J, 71 FR at 18593-94. Furthermore, the Commission explained that “the placement of advertising on another person's website for a fee includes all potential forms of advertising, such as banner advertisements, streaming video, popup advertisements, and directed search results.” 13 Id.; see also id. at 18608 n.52 (noting that, as used in a different context, “terms `website' and `any internet or electronic publication' are meant to encompass a wide range of existing and developing technology” including “social networking software”). Thus, since 2006, Commission regulations have required disclaimer information to be included in certain paid internet advertisements.

The Commission has been asked on a number of occasions about the application of the disclaimer requirement to internet communications, including small, character- or space-limited internet communications such as banner advertisements; social media text, video, or image advertisements; and directed search results. The queries center on whether the communications are exempt from the disclaimer requirements under the impracticable or small items exceptions at 11 CFR 110.11(f)(1) or whether they may incorporate technological modifications to satisfy the disclaimer requirements.14

The Commission has applied the small items exception to the general disclaimer requirements in situations where there are “technological limitations on both the size and the length of information” that can be contained based on the small physical size of the item or an external technological constraint. Advisory Opinion 2007-33 (Club for Growth PAC) at 3 (declining to extend small items exception to spoken disclaimer requirement); see also Advisory Opinion 1980-42 (Hart for Senate Campaign Committee) (applying the exception to concert tickets); Advisory Opinion 2002-09 (Target Wireless) (applying the exception to character-limited “short message service,” or SMS, communications distributed through a non-internet-based wireless telecommunications network); 11 CFR 110.11(f)(1)(i). In the Target Wireless advisory opinion, the Commission considered whether disclaimers were required on paid content distributed via SMS communications through a non-internet-based wireless telecommunications network. At the time the Commission issued that advisory opinion, technology limited SMS content to 160 text-only characters per message; SMS messages could not include images; wireless telephone carriers contractually required consumers to pay a flat fee for a certain number of SMS messages that consumers could receive; and content longer than 160 text characters would be sent over multiple messages, which might not be received consecutively. Advisory Opinion 2002-09 (Target Wireless) at 2. The Commission concluded that the small items exception applied to paid SMS messages, noting “that the SMS technology places similar limits on the length of a political advertisement as those that exist with bumper stickers.” Id. at 4.

The Commission has not exempted any disclaimers under the small items exception in the 15 years since it issued the Target Wireless advisory opinion. The Commission discussed the small items exception in Advisory Opinion 2007-33 (Club for Growth PAC), which concerned whether an advertiser could “dispense with” or “truncate” the required disclaimers in 10- and 15-second television advertisements. The Commission concluded that the advertisements did not qualify for the small items exception.

The related impracticable exception at 11 CFR 110.11(f)(1)(ii) exempts from the disclaimer requirement advertisements displayed via skywriting, water towers, and wearing apparel, as well as “other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable.” The list of communications in the rule is not exhaustive. The Commission has not, however, applied the impracticable exception to a situation beyond those listed in section 110.11(f)(1)(ii). See Advisory Opinion 2007-33 (Club for Growth PAC) (determining that “physical or technological limitations” in 10- and 15-second television advertisements do not qualify for impracticable exception); Advisory Opinion 2004-10 (Metro Networks) (determining that “live read” traffic report sponsorship messages, delivered by reporters from mobile units and aircraft, did not present “specific physical and technological limitations” to qualify for impracticable exception); see also Advisory Opinion 2013-13 (Freshman Hold'em JFC et al.) at n.4 (concluding that “emails and web pages . . . are not electronic communications in which the inclusion of disclaimers may be inherently impracticable.”).

Nonetheless, in Advisory Opinion 2004-10 (Metro Networks), the Commission recognized that, although the “physical and technological limitations” of a communication medium may “not make it impracticable to include a disclaimer at all,” technological or physical limitations may extend to “one particular aspect of the disclaimer” requirements. Advisory Opinion 2004-10 (Metro Networks) at 3. In such circumstances, the Commission concluded that a disclaimer was required but permitted modifications or adaptations of the technologically or physically limited aspects of the communication medium. See id. at 3-4 (concluding that reporters reading sponsorship message live from aircraft or mobile units could read stand by your ad language, rather than candidate who was not physically present).

The Commission was first asked to apply the small items exception or impracticable exception to text-limited internet advertisements in 2010. Google proposed to sell AdWords search keyword advertisements limited to 95 text characters; the proposed advertisements would not include disclaimers but would link to a landing page (the purchasing political committee's website) on which users would see a disclaimer. See Advisory Opinion 2010-19 (Google). The Commission concluded that Google's proposed AdWords program “under the circumstances described . . . [was] not in violation of the Act or Commission regulations,” but the advisory opinion did not answer whether Google AdWords ads would qualify for the small items or impracticable exception. Id. at 2.

In response to two subsequent advisory opinion requests concerning the possible application of the small items exception or impracticable exception to small internet advertisements, the Commission was unable to issue advisory opinions by the required four affirmative votes. See Advisory Opinion Request, Advisory Opinion 2011-09 (Facebook) (Apr. 26, 2011) (concerning application of exceptions to zero-to-160 text character ads with thumbnail size images); Advisory Opinion Request, Advisory Opinion 2013-18 (Revolution Messaging) (Sept. 11, 2013) (concerning application of exceptions to mobile banner ads).

Finally, the Commission considered an advisory opinion request in 2017 asking whether paid image and video ads on Facebook “must . . . include all, some, or none of the disclaimer information specified by 52 U.S.C. 30120(a).” Advisory Opinion Request at 4, Advisory Opinion 2017-12 (Take Back Action Fund) (Oct. 31, 2017). The Commission issued an opinion concluding that the proposed Facebook image and video advertisements “must include all of the disclaimer information” specified by the Act, but, in reaching this conclusion, Commissioners relied on two different rationales, neither of which garnered the required four affirmative votes. Advisory Opinion 2017-12 (Take Back Action Fund) at 1.

As discussed above, the Commission proposed in the Technology NPRM to revise the definition of “public communication” in 11 CFR 100.26 to include communications placed for a fee on another person's “internet-enabled device or application,” in addition to communications placed for a fee on another person's website. Disclaimers are required for any “public communication” that contains express advocacy or solicits a contribution, and for all public communications by political committees. The Commission wants to make sure that any change to the definition of “public communication” in 11 CFR 100.26 is appropriate as applied in the disclaimer rule, given the complexities of internet advertising and the rapid pace of technological change.

Commenters in this rulemaking have offered insight into, as one described it, the “myriad of options for advertising via different media and different platforms online.” 15 Since the Commission's 2006 internet rulemaking, the focus of internet activity has shifted from blogging, websites, and listservs 16 to social media networks (Facebook, Twitter, and LinkedIn), media sharing networks (YouTube, Instagram, and Snapchat), streaming applications (Netflix, Hulu), and mobile devices and applications. Other significant developments include augmented and virtual reality 17 and the “Internet of Things”: Wearable devices (smart watches, smart glasses), home devices (Amazon Echo), virtual assistants (Siri, Alexa), smart TVs and other smart home appliances.18 One commenter noted, “[a]s consumers move toward virtual and augmented reality services, wearable technology, screenless assistants, and other emerging technologies, there is every reason to predict that advertisers will demand the ability to reach voters and customers on those technologies, and, in turn, new advertising configurations that have not yet been imagined will be developed.” 19

Accordingly, the Commission is reopening the definition of “public communication” in 11 CFR 100.26 for the limited purpose of determining whether revising the definition to include communications placed for a fee on another person's “internet-enabled device or application,” in addition to communications placed for a fee on another person's website, would be a clear and technically accurate way to refer to the various media through which paid internet communications can be and will be sent and received. The Commission invites comment on this proposal. Is it clear from the proposed language that both the placement-for-a-fee requirement and the third-party requirement would apply to websites, internet-enabled devices, and internet applications? In this rulemaking, the Commission is not considering any change to the definition of “public communication” other than the terminology that should replace “website” as used in the definition.

Technological developments over the past 15 years have rendered much current internet advertising distinguishable from the non-internet-based SMS advertisements to which the Commission applied the small items exception in Advisory Opinion 2002-09 (Target Wireless) and from the internet advertisements the Commission considered in promulgating the disclaimer regulations in 2002. As Facebook explained in a comment on this rulemaking, “[w]hen Facebook submitted its request for an advisory opinion in 2011, ads on Facebook were small and had limited space for text. Ad formats available on Facebook have expanded dramatically since that time.” 20 Indeed, many internet advertisements today include video, audio, and graphic components in addition to the text components considered in the Target Wireless advisory opinion. See, e.g., Advisory Opinion Request, Advisory Opinion 2017-12 (Take Back Action Fund) (Oct. 31, 2017). Moreover, today, commercial internet advertisements are subject to other federal regulatory disclosure regimes.21 Are the different degrees of First Amendment protection afforded political speech as opposed to commercial speech relevant to any consideration of other agencies' disclosure regimes? 22

As noted above, the Commission's regulations have required disclaimer information to be included in certain paid internet advertisements since 2006. Spending on digital political advertising grew almost eightfold just between 2012 and 2016, from $159 million to $1.4 billion.23 Many commenters expressed the view that the need for internet communication disclaimers has grown along with spending on internet political advertising.24 As one commenter wrote, “[T]he increasing prominence of online election expenditures makes the failure to update campaign finance laws to adequately cover the internet more dangerous with every cycle.” 25 The dramatic growth in political advertising on the internet highlights the need for regulatory clarity in this area. As one commenter noted, “[w]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary when a new and different medium for communication appears.” 26 Other commenters noted that the importance and value of political advertising disclaimers do not vary when new forms of communication emerge.27

Thus, the Commission is proposing to add regulatory provisions clarifying, for various types of paid internet public communications, the disclaimers required and, in certain circumstances, when a paid internet communication may employ a modified approach to the disclaimer requirements.

As explained below, the Commission offers two proposals. They differ in approach.

Alternative A proposes to apply the full disclaimer requirements that now apply to radio and television communications to public communications distributed over the internet with audio or video components. Alternative A also proposes to apply the type of disclaimer requirements that now apply to printed public communications to text and graphic public communications distributed over the internet. Finally, Alternative A would allow certain small text or graphic public communications distributed over the internet to satisfy the disclaimer requirements through an “adapted disclaimer.”

Alternative B proposes to treat internet communications differently from communications in traditional media. Alternative B would require disclaimers on internet communications to be clear and conspicuous and to meet the same general content requirement as other disclaimers, without imposing the additional disclaimer requirements that apply to print, radio, and television communications. Alternative B also proposes to allow certain paid internet advertisements to satisfy the disclaimer requirements through an adapted disclaimer, depending on the amount of space or time necessary for a clear and conspicuous disclaimer as a percentage of the overall advertisement. In the event that an advertisement could not provide a disclaimer even through a technological mechanism, Alternative B proposes to create an exception to the disclaimer requirement specifically for paid internet advertisements.

The Commission requests comment on all elements of both proposals. The two proposals need not be considered as fixed alternatives; commenters are encouraged to extract the best elements of each, or suggest improvements or alternatives, to help the Commission fashion the best possible rule.

Both Alternative A and Alternative B propose to add new paragraph (c)(5) to 11 CFR 110.11. New paragraph (c)(5) in each proposal would provide specific disclaimer requirements for internet communications. This approach would be consistent with the current structure of the disclaimer rule at 11 CFR 110.11, which categorizes disclaimer requirements by the form of communication on which they appear.

In the first paragraph of Alternative B's proposed section (c)(5), Alternative B proposes to define the term “internet communications.” Alternative A does not propose to introduce or define this term. Alternative B's proposed paragraph (c)(5)(i)(A) defines “internet communications” as email of more than 500 substantially similar communications when sent by a political committee; internet websites of political committees available to the general public; and “internet public communications” as defined in paragraph (c)(5)(i)(B). Alternative B's proposed paragraph (c)(5)(i)(B) defines “internet public communication,” in turn, as any communication placed for a fee on another person's website or internet-enabled device or application. Alternative B's proposed definition of “internet communication” is intended to capture all communications distributed via the internet that are subject to the disclaimer requirement. See 11 CFR 110.11(a)(1)-(3). Alternative B's proposed definition of “internet public communication” is intended to capture all online “public communications,” as defined in 11 CFR 100.26. Are the proposed definitions sufficiently broad to encompass new technologies? Are they platform-neutral? Should the definition of “internet public communication” include a reference to virtual reality, social networking, or internet platforms?

Both Alternative A and Alternative B propose to define additional terms: “adapted disclaimer,” “technological mechanism,” and “indicator.” These terms are discussed below.

As described below, Alternative A proposes to extend the specific requirements for disclaimers on radio and television communications to public communications distributed over the internet with audio or video components. Under Alternative A, such audio and video internet public communications would also be required to satisfy the general requirements that apply to all public communications requiring disclaimers. Alternative B likewise proposes to require that radio and television communications distributed over the internet must satisfy the general requirements that apply to all public communications requiring disclaimers. Alternative B would not extend any additional disclaimer requirements to such communications.

As noted above, the Act and Commission regulations impose specific requirements for disclaimers on radio and television communications. See 52 U.S.C. 30120(d); 11 CFR 110.11(c)(3)-(4). These requirements vary, depending on whether a candidate or another person pays for or authorizes the communication.

Radio communications paid for or authorized by a candidate must include an audio statement spoken by the candidate, identifying the candidate and stating that the candidate has approved the communication. 11 CFR 110.11(c)(3)(i). Radio communications that are not paid for or authorized by a candidate must include an audio statement identifying the person paying for the communication and that that person “is responsible for the content of this advertising.” 11 CFR 110.11(c)(4)(i).

Television, broadcast, cable, or satellite communications paid for or authorized by a candidate must include a statement by the candidate, identifying the candidate and stating that the candidate has approved the communication, either through a full-screen view of the candidate making the statement or by a voice-over accompanied by a “clearly identifiable photographic or similar image” of the candidate; these communications must also include a similar statement “in clearly readable writing” at the end of the communication. 11 CFR 110.11(c)(3)(ii)-(iii). Television, broadcast, cable, or satellite communications that are not paid for or authorized by a candidate must include the audio statement required by 11 CFR 110.11(c)(4)(i) and conveyed by a “full-screen view of a representative” of the person making the statement or in a voice-over by such person; these communications must also include a similar statement “in clearly readable writing” at the end of the communication. 11 CFR 110.11(c)(4)(ii)-(iii).28

As noted above, internet advertisements may be in the form of audio or video communications, or may incorporate audio or video elements.29 Alternative A is based on the premise that these advertisements are indistinguishable from offline advertisements that may be distributed on radio or television, broadcast, cable, or satellite in all respects other than the medium of distribution.30 Moreover, because the audio and video components of internet communications with these elements do not contain “character” restrictions, Alternative A proposes to apply parameters to such communications akin to the parameters in which disclaimers must appear on radio and television advertisements rather than the conditions that may constrain “printed” materials on which a disclaimer must appear.

Accordingly, in Alternative A, the Commission proposes to provide that public communications distributed over the internet with audio or video components are treated, for purposes of the disclaimer rules, the same as “radio” or “television” communications. The Commission, in Alternative A, proposes to do so in proposed paragraph (c)(5)(ii), which would incorporate the existing requirements at 11 CFR 110.11(c)(3) and (4) that apply to radio, television, broadcast, cable, and satellite communications, because those provisions have been in operation for 15 years and are, therefore, familiar to persons paying for, authorizing, and distributing communications. Moreover, by applying the specifications for radio and television communications to audio and video communications distributed over the internet, the proposed regulations would ensure that internet audio ads could air on radio and internet video ads could air on television without having to satisfy different disclaimer requirements.

Alternative A's proposed paragraph (c)(5)(ii) would provide that a “public communication distributed over the internet with audio but without video, graphic, or text components” must include the statement described in 11 CFR 110.11(c)(3)(i) and (iv) if authorized by a candidate, or the statement described in 11 CFR 110.11(c)(4) if not authorized by a candidate.

Alternative A's proposals concerning audio communications (like Alternative A's proposals for video, text, and graphic internet communications discussed below) incorporate the term “public communication,” as it exists or may be amended, to make clear that these provisions neither expand nor contract the scope of the disclaimer rules set forth at 11 CFR 110.11(a). The proposed reference to “a public communication distributed over the internet with an audio component but without video, graphic, or text components” (like the reference to the “internet” in Alternative A's proposals for video, text, and graphic internet communications discussed below) is intended to encompass advertisements on websites as well as those distributed on other internet-enabled or digital devices or applications; for audio internet advertisements, these would include communications on podcasts, internet radio stations, or app channels.31 The proposed reference to a “public communication distributed over the internet” is not intended to alter the definition of “public communication,” as defined in 11 CFR 100.26. Is this clear, or should the Commission include a cross-reference in the regulatory text? Moreover, so as to hew most closely to the “radio” provisions that Alternative A incorporates, the proposed amendments regarding “audio” internet communications are intended to apply to those communications with only an audio component. The Commission proposes to address communications with any “video, graphic, or text components” separately, as explained below.

Alternative A's proposed paragraph (c)(5)(ii) would also provide that a “public communication distributed over the internet with a video component” must include the statement described in 11 CFR 110.11(c)(3)(ii)-(iv) if authorized by a candidate, or the statement described in 11 CFR 110.11(c)(4) if not authorized by a candidate.

Because this proposal is intended to encompass video public communications on websites, apps, and streaming video services, Alternative A's proposed new paragraph (c)(5)(ii) would apply to a video that a political committee pays to run as a “pre-roll” video on the YouTube app or appear in a promoted YouTube.com search result, but would not apply to the same video posted for free on YouTube.com (since a communication not placed for a fee would not be a “public communication”).32 Unlike traditional television, broadcast, cable, or satellite ads, however, video advertisements placed online may include non-video components such as separate text, or graphic fields. The proposed rule regarding internet video ads thus would differ from the existing television, broadcast, cable, and satellite provisions in that the proposed rule would apply even if the communication also included non-video components.

This aspect of Alternative A would not explicitly address small audio or video internet ads. The Commission proposes to take this approach to hew Alternative A's proposed rules on audio and video ads as closely as possible to the existing disclaimer provisions for advertisements transmitted by radio, television, broadcast, cable, and satellite, which do not, in paragraphs (c)(3) or (4), account for “small” advertisements. Should new technology develop that would render the provision of a disclaimer on a particular type of audio or video internet communication impracticable, the Commission anticipates that, as with current TV and radio ads, such circumstances could be addressed in an advisory opinion seeking to exempt such a communication from the disclaimer requirements.33

The Commission seeks comment as to whether these proposals accurately describe audio and video communications over the internet, regardless of the electronic or digital platforms on which they may be distributed. For example, does the Commission need to clarify or expand the term “internet”? Similarly, does the Commission need to clarify the term “video” to address whether an advertisement with a GIF is a communication “with a video component” or one with a “graphic” component? Similarly, should the Commission expressly include or exclude from the term “video” static (i.e., non-moving) paid digital advertisements in dynamic (i.e., moving) environments such as “billboard” ads inside interactive gaming systems, or virtual-reality and augmented-reality platforms? 34

The Commission also welcomes comment on any aspect of these proposals, including the approach towards the exceptions and, more generally, the advisability of treating audio and video internet communications in the manner that radio, television, broadcast, cable, and satellite communications are treated.

The proposals in Alternative B are premised on the internet as a “unique medium of . . . communication[]” 35 that poses “unique challenges with respect to advertising disclosures.” 36 Although advertisements on the internet may often look or sound like television or radio advertisements, several commenters focused on the differences between internet advertising and advertising on more traditional forms of media. As one stated, “[d]igital advertising is inherently more diverse than a simple transition of similar content from print or broadcast television. It comes in many different formats presented across a wide range of technology platforms with screen size ranging from large to very small.” 37 Another commenter noted that, “[i]n addition to character-limited ads that just feature text, there are banner ads with images and text, video ads with text, and audio ads that also feature a corresponding interactive image or video on an app.” 38 A third commented on the “nearly infinite range . . . of possible combinations of hardware, software, add-ons, screen sizes and resolutions, individualized settings, and other factors . . . can affect the display of a political communication” on the internet.39 “Content that is optimized for viewing on phones, tablets, and other mobile devices is distinct from content that appears on a desktop or laptop computer.” 40 The “ways people physically interact with content also vary by medium (e.g., a user can `rollover' content on a desktop screen to see more information, but may not use a mouse or view rollovers on a mobile device).” 41 In addition, internet advertisements can vary significantly in duration. Internet ads can last for as little as “fifteen seconds . . . or even shorter,” and entire ad campaigns can last for as little as “a few days or just a few hours for events like flash sales.” 42 Moreover, “[p]aid advertising on the internet is constantly evolving in nature.” 43

Given the rapid pace of technological change and an inability to forecast the future, the revisions to the disclaimer rules proposed in Alternative B are intended to recognize the differences between the internet and traditional forms of media like newspapers, radio, and television.44 Thus, Alternative B's proposed paragraph (c)(5)(ii) would require disclaimers on internet communications to meet the general content requirements in 11 CFR 110.11(b) and the general “clear and conspicuous” requirement of 11 CFR 110.11(c)(1), but not the additional “stand by your ad” requirements for radio and television communications.45

Congress established the Bureau in the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and therein set forth the Bureau's purpose, objectives, and functions.1 Pursuant to that Act, on July 21, 2011, the “consumer financial protection functions” previously vested in certain other Federal agencies transferred to the Bureau.2 The term “consumer financial protection function” is defined to include “all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.” 3 The Dodd-Frank Act in turn defines Federal consumer financial law broadly to include “the provisions of [title X of the Dodd-Frank Act], the enumerated consumer laws, the laws for which authorities are transferred under subtitles F and H, and any rule or order prescribed by the Bureau under [title X], an enumerated consumer law, or pursuant to the authorities transferred under subtitles F and H.” 4

Accordingly, Congress generally transferred to the Bureau rulemaking authority for Federal consumer financial laws previously vested in certain other Federal agencies, and the Bureau thereafter assumed responsibility over the various regulations that these agencies had issued under this rulemaking authority (the “Inherited Regulations”).5 The Dodd-Frank Act also provided new rulemaking authorities to the Bureau under the Federal consumer financial laws. Since the Bureau's creation, it has prescribed a number of rules under Federal consumer financial law in rulemakings mandated by Congress, as well as in discretionary rulemakings. These Bureau-issued rules and the new authorities created under the Dodd-Frank Act are referred to collectively in this RFI as the “Adopted Regulations.” The Adopted Regulations have often amended the Inherited Regulations.

The Bureau's Rulemaking Authority. The Dodd-Frank Act states that the Bureau is authorized to “exercise its authorities under Federal consumer financial law to administer, enforce, and otherwise implement the provisions of Federal consumer financial law.” 6 The Dodd-Frank Act further authorizes the Director of the Bureau to prescribe rules as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, which include enumerated consumer laws as well as provisions of the Dodd-Frank Act, and to prevent evasions thereof.7

Existing Bureau Work to Examine Inherited Regulations. The Dodd-Frank Act states that the Bureau is authorized to exercise its authorities under Federal consumer financial law for, among other objectives, “ensuring that, with respect to consumer financial products and services . . . outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens.” 8 In 2011 and 2012, the Bureau sought and received stakeholders' suggestions to streamline the Inherited Regulations.9 The Bureau identified and executed several burden reduction projects from that undertaking.10 More recently, the Bureau has established an initiative to review periodically individual Inherited Regulations or portions of such regulations. The Bureau is beginning the first such review by focusing on subparts B and G of Regulation Z, which implement the Truth in Lending Act with respect to open-end credit generally and credit cards in particular.11

The Bureau is using this request for information (RFI) to seek public input regarding the substance of the Inherited Regulations, including whether the Bureau should issue additional rules. The Bureau encourages comments from all interested members of the public. The Bureau anticipates that the responding public may include (among others) entities and their service providers subject to Bureau rules, trade associations that represent these entities, individual consumers, consumer advocates, regulators, and researchers or members of academia.

The Bureau previously issued an RFI regarding its rulemaking processes, and plans to issue an RFI about the Bureau's regulatory implementation and guidance functions. The Bureau also previously issued an RFI regarding the Adopted Regulations. Accordingly, the purpose of this RFI is to seek feedback on the content of the Inherited Regulations, not the Bureau's rulemaking processes, implementation initiatives that occur after the issuance of a final rule, or the Adopted Regulations.12 Also please note that the Bureau is not requesting comment on any pending rulemaking for which the Bureau has issued a Notice of Proposed Rulemaking or otherwise solicited public comment.

The Inherited Regulations. The Inherited Regulations comprise the statutory authority and regulations that were transferred to the Bureau by title X of the Dodd-Frank Act. They include the regulations that the Bureau restated in Title 12, Chapter X of the Code of Federal Regulations. For clarity, the term “Inherited Regulations” also includes all rulemaking authority inherited by the Bureau, regardless of the extent to which the Bureau's predecessors exercised that authority.

To allow the Bureau to more effectively evaluate suggestions, the Bureau requests that, where possible, comments include:

• Specific suggestions regarding any potential updates or modifications to the Inherited Regulations, consistent with the laws providing the Bureau with rulemaking authority and the Bureau's regulatory and statutory purposes and objectives, and including, in as much detail as possible, the nature of the requested change, and supporting data or other information on impacts and costs of the Inherited Regulations and on the suggested changes thereto; and

• Specific identification of any aspects of the Inherited Regulations that should not be modified, consistent with the laws providing the Bureau with rulemaking authority and the Bureau's regulatory and statutory purposes and objectives, and including, in as much detail as possible, supporting data or other information on impacts and costs, or information related to consumer and public benefit resulting from these rules.

The following list represents a preliminary attempt by the Bureau to identify considerations relevant in determining where modifications of the Inherited Regulations or further exercise of the Bureau's rulemaking authorities may be appropriate. This non-exhaustive list is meant to assist in the formulation of comments and is not intended to restrict the issues that may be addressed. The Bureau requests that, in addressing these questions or others, commenters identify with specificity the Bureau rules at issue, providing legal citations to specific regulations or statutes where appropriate and available. The Bureau invites commenters to identify the products or services that would be affected by any recommendations made by those commenters. Please feel free to comment on some or all of the questions below and on some or all of the Inherited Regulations, but please be sure to indicate on which area you are commenting. The Bureau encourages commenters to make their best efforts to limit their comments to the Inherited Regulations; however, the Bureau will consider all comments received under the Inherited Regulations and Adopted Regulations RFIs together.

From all of the suggestions, commenters are requested to offer their highest priorities, along with their explanation of how or why they have prioritized suggestions. Commenters are asked to single out their top priority. Suggestions should focus on revisions that the Bureau could implement consistent with its authorities and without Congressional action.

The Bureau is seeking feedback on all aspects of the Inherited Regulations, including but not limited to:

1. Aspects of the Inherited Regulations that:

a. Should be tailored to particular types of institutions or to institutions of a particular size;

b. Create unintended consequences;

c. Overlap or conflict with other laws or regulations in a way that makes it difficult or particularly burdensome for institutions to comply;

d. Are incompatible or misaligned with new technologies, including by limiting providers' ability to deliver, electronically, mandatory disclosures or other information that may be relevant to consumers; or

e. Could be modified to provide consumers greater protection from the incidence and effects of identity theft.

2. Changes the Bureau could make to the Inherited Regulations, consistent with its statutory authority, to more effectively meet the statutory purposes and objectives set forth in the Federal consumer financial laws, as well as the Bureau's predecessor agencies' specific goals for the particular Inherited Regulation in the first instance.

3. Changes the Bureau could make to the Inherited Regulations, consistent with its statutory authority, that would advance the following statutory purposes and objectives as set forth in section 1021 of the Dodd-Frank Act:

a. The statutory purposes set forth in section 1021(a) are:

i. All consumers have access to markets for consumer financial products and services; and

ii. Markets for consumer financial products and services are fair, transparent, and competitive.

b. The statutory objectives set forth in section 1021(b) are:

i. Consumers are provided with timely and understandable information to make responsible decisions about financial transactions;

ii. Consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination;

iii. Outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens;

iv. Federal consumer financial law is enforced consistently in order to promote fair competition; and

v. Markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.

4. Pilots, field tests, demonstrations, or other activities that the Bureau could launch to better quantify benefits and costs of potential revisions to the Inherited Regulations, or make compliance with the Inherited Regulations more efficient and effective.

5. Areas where the Bureau has inherited rulemaking authority, but has not exercised it, where rulemaking would be beneficial and align with the purposes and objectives of the applicable Federal consumer financial laws.

Authority for This Rulemaking

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

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

Communications should identify both docket numbers (FAA Docket No. FAA-2018-0219 and Airspace Docket No. 17-AGL-23) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0219 and Airspace Docket No. 17-AGL-23.” The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is planning to decommission the Mattoon, IL (MTO), VOR/DME in November 2018. The Mattoon VOR was one of the candidate VORs identified for discontinuance by the FAA's VOR MON program and listed in the Final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082.

With the planned decommissioning of the Mattoon, IL, VOR/DME, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of the affected airways. As such, proposed modifications to VOR Federal airways V-72 and V-429 would result in a gap in the enroute ATS route structure in the Mattoon and Charleston, IL, area. To overcome the gap in the enroute structure, instrument flight rules (IFR) traffic could use adjacent VOR Federal airways (including V-5, V-7, V69, V-171, V-191, V-192, V-262, and V-586) to circumnavigate the affected area, file point to point through the affected area using fixes that will remain in place, or receive air traffic control (ATC) radar vectors through the area. Additionally, the Mattoon DME facility is planned to be retained and charted as a DME facility with the “MTO” three-letter identifier. Visual flight rules (VFR) pilots who elect to navigate via the airways through the affected area could also take advantage of the adjacent VOR Federal airways or ATC services previously listed.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the descriptions of VOR Federal airways V-72 and V-429. The planned decommissioning of the Mattoon, IL, VOR has made these actions necessary. The proposed VOR Federal airway changes are described below.

V-72: V-72 currently extends between the Razorback, AR, VOR/Tactical Air Navigation (VORTAC) and the Bloomington, IL, VOR/DME. The FAA proposes to remove the airway segment between the Bible Grove, IL, VORTAC and the Bloomington, IL, VOR/DME. The unaffected portions of the existing airway would remain as charted.

V-429: V-429 currently extends between the Cape Girardeau, MO, VOR/DME and the Joliet, IL, VORTAC. The FAA proposes to remove the airway segment between the Bible Grove, IL, VORTAC and the Champaign, IL, VORTAC. The unaffected portions of the existing airway would remain as charted.

All radials in the route descriptions below are unchanged and stated in True degrees.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

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

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

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

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

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

Communications should identify both docket numbers (FAA Docket No. FAA-2018-0222 and Airspace Docket No. 18-AGL-2) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0222 and Airspace Docket No. 18-AGL-2.” The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The Newberry VOR/DME is a non-federal navaid, owned and maintained by the State of Michigan, and is located on the Luce County Airport in Newberry, MI. The Federal Aviation Administration received a request to decommission the Newberry VOR/DME NAVAID from the Michigan Department of Transportation, Office of Aeronautics, stating the State of Michigan intended to permanently remove the NAVAID from service in September 2018, due to financial constraints. The request included concurrence by the Airport Manager of the Luce County Airport. As a result, the FAA is planning to decommission the Newberry, MI, VOR/DME NAVAID facility effective on September 13, 2018.

With the planned decommissioning of the Newberry, MI, VOR/DME, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of VOR Federal airway, V-316. As such, the proposed modification to V-316 would result in a gap in the airway and the enroute ATS route structure in the Newberry, MI, area between the Sawyer, MI, VOR/DME and Sault Ste Marie, MI, VOR/DME. To overcome the gap in the airway and enroute structure, instrument flight rules (IFR) traffic could circumnavigate the entire area using V-133 and V-193 via the Traverse City VOR/DME, file point to point through the affected area using fixes that will remain in place, or receive air traffic control (ATC) radar vectors through the affected area. Visual flight rules (VFR) pilots who elect to navigate via the airways through the affected area could also take advantage of the adjacent airways to circumnavigate, the fixes that will remain, or the ATC services previously listed.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the description of VOR Federal airway V-316. The planned decommissioning of the Newberry, MI, VOR/DME has made this action necessary. The proposed VOR Federal airway change is described below.

V-316: V-316 currently extends between the Ironwood, MI, VOR/Tactical Air Navigation (VORTAC) and the Sudbury, ON, Canada, VOR/DME. The FAA proposes to remove the airway segment between the Sawyer, MI, VOR/DME and the Sault Ste Marie, MI, VOR/DME. The unaffected portions of the existing airway would remain as charted.

All radials in the route descriptions below are unchanged and stated in True degrees.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

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

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

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

Authority for This Rulemaking

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

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

Communications should identify both docket numbers (FAA Docket No. FAA-2018-0220 and Airspace Docket No. 17-AGL-24) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0220 and Airspace Docket No. 17-AGL-24.” The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Central Service Center, Federal Aviation Administration, 10101 Hillwood Blvd., Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is planning to decommission the Schoolcraft County, MI (ISQ), VOR/DME in January 2019. The Schoolcraft County VOR was one of the candidate VORs identified for discontinuance by the FAA's VOR MON program and listed in the Final policy statement notice, “Provision of Navigation Services for the Next Generation Air Transportation System (NextGen) Transition to Performance-Based Navigation (PBN) (Plan for Establishing a VOR Minimum Operational Network),” published in the Federal Register of July 26, 2016 (81 FR 48694), Docket No. FAA-2011-1082.

With the planned decommissioning of the Schoolcraft County, MI, VOR/DME, the remaining ground-based NAVAID coverage in the area is insufficient to enable the continuity of the affected airways. As such, proposed modifications to VOR Federal airway V-78 and removal of V-224 would result in a gap in the enroute ATS route structure in the Manistique, MI, area. To overcome the gap in the enroute structure, instrument flight rules (IFR) traffic could file point to point through the affected area using fixes that will remain in place, or receive air traffic control (ATC) radar vectors through the area. Additionally, the Schoolcraft County DME facility is planned to be retained and charted as a DME facility with the “ISQ” three-letter identifier. Visual flight rules (VFR) pilots who elect to navigate via the airways through the affected area could also take advantage of the ATC services previously listed.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the description of VOR Federal airway V-78 and remove VOR Federal airway V-224. The planned decommissioning of the Schoolcraft County, MI, VOR has made these actions necessary. The proposed VOR Federal airway changes are described below.

V-78: V-78 currently extends between the Huron, SD, VOR/Tactical Air Navigation (VORTAC) and the Saginaw, MI, VOR/DME. The FAA proposes to remove the airway segment between the Escanaba, MI, VOR/DME and the Pellston, MI, VORTAC. The unaffected portions of the existing airway would remain as charted.

V-224: V-224 currently extends between the Sawyer, MI, VOR/DME and the Schoolcraft County, MI, VOR/DME. The FAA proposes to remove the airway in its entirety.

All radials in the route descriptions below are unchanged and stated in True degrees.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

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

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

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

On July 28, 2017, FDA announced a new comprehensive plan for tobacco and nicotine regulation that will serve as a multi-year roadmap to better protect children and significantly reduce tobacco-related disease and death. As part of that announcement, FDA stated that it would solicit additional comments and scientific data related to the patterns of use and resulting public health impacts from premium cigars and consider the appropriate regulatory status of premium cigars. The goal is to ensure that FDA has a broad scientific and regulatory foundation to efficiently and effectively implement the Tobacco Control Act. Moreover, the regulatory considerations with respect to premium cigars, their use, and related public health issues continue to be of significant interest to some stakeholders, as well as a topic of ongoing and emerging research. Given the ongoing interest from many parties and sectors, such as industry and Members of Congress, in the regulatory status of premium cigars, FDA is issuing this ANPRM to request relevant new and different information, data, and analysis not submitted in response to FDA's proposed deeming rule (79 FR 23142, discussed below) that could inform FDA's regulation of premium cigars.

The Tobacco Control Act was enacted on June 22, 2009, amending the FD&C Act and providing FDA with the authority to regulate tobacco products (Pub. L. 111-31). Specifically, section 101(b) of the Tobacco Control Act amends the FD&C Act by adding a new chapter that provides FDA with authority over tobacco products. Section 901 of the FD&C Act (21 U.S.C. 387a), as amended by the Tobacco Control Act, states that the new chapter in the FD&C Act (chapter IX—Tobacco Products) (21 U.S.C. 387 through 387u) 1 applies to all cigarettes, cigarette tobacco, roll-your-own tobacco, smokeless tobacco, and any other tobacco products that the Secretary of Health and Human Services by regulation deems to be subject to the chapter.

In the Federal Register of April 25, 2014 (79 FR 23142), FDA published a proposed rule seeking to deem additional products meeting the statutory definition of “tobacco product” in section 201(rr) of the FD&C Act (21 U.S.C. 321(rr)), except accessories to those products, to be subject to chapter IX of the FD&C Act (the proposed deeming rule). In that proposed rule, FDA proposed two, alternative, options: Option 1 proposed to extend the Agency's tobacco product authorities to all products that meet the definition of “tobacco product” in the FD&C Act, except accessories of newly deemed tobacco products, while Option 2 proposed to extend the Agency's tobacco product authorities to all tobacco products set forth in Option 1, except so-called premium cigars (79 FR 23142 at 23150 through 23152). After carefully considering the public comments on the rule, the Agency decided to adopt Option 1, concluding that there was no appropriate public health justification to exclude premium cigars from regulation. Specifically, FDA concluded that: (1) All cigars pose serious negative health risks, (2) the available evidence does not provide a basis for FDA to conclude that the patterns of premium cigar use sufficiently reduce the health risks to warrant exclusion, and (3) premium cigars are used by youth and young adults. FDA noted that, although some premium cigar smokers might smoke these products infrequently or report that they do not inhale, these behaviors do not negate the adverse health effects of tobacco smoke or demonstrate that cigars do not cause secondhand smoke-related disease in others. Consequently, premium cigars were included in the scope of the final deeming rule published on May 10, 2016 (81 FR 28974 at 29020) to more effectively protect the public health.

We received numerous comments on the deeming proposed rule with respect to premium cigars, both in favor of and against regulating these products. However, the comments against regulation provided little data to support the opinions expressed and, where studies were submitted, provided little information about the studies cited.

FDA is seeking comments, evidence, information, data, and analysis that were not submitted in response to the proposed deeming rule, or that may have become available since then, that could further inform FDA's thinking about the regulation of premium cigars. One example of the type of information that would be responsive to this request is a recent publication that assessed use patterns and related behaviors of smokers of “premium” and other cigar types (Ref. 1). This paper, the PATH Study Paper, analyzed findings from the 2013-2014 Population Assessment of Tobacco and Health (PATH) Study with a focus on smokers of filtered cigars, cigarillos, and traditional cigars, which were further classified by study authors as either “premium” or “non-premium.” 2 With respect to this group of smokers, the PATH Study Paper described similarities and differences in user characteristics, tobacco use patterns, and purchasing behaviors according to cigar type. Among the findings stated in this PATH Study Paper were that those who smoked “premium” cigars tended to report smoking them on fewer days compared with smokers of the other cigar types and reported consuming fewer cigars per day, on average, compared with smokers of other cigar types. In its conclusion, the PATH Study Paper highlighted the importance of adequately describing the cigar type studied and, where appropriate, differentiating results by cigar type.

When reviewing the PATH Study Paper and any other studies concerning cigars, it should be noted that tobacco research studies have not used a single, consistent definition of “premium” cigars. As demonstrated by FDA's request for definitional information in this document, FDA considers it important to understand what definitions of premium cigar are used when analyzing and comparing results across studies and papers.

For the purposes of the questions in this ANPRM, “cigar” means a tobacco product that: (1) Is not a cigarette and (2) is a roll of tobacco wrapped in leaf tobacco or any substance containing tobacco (see 21 CFR 1143.1).

FDA is seeking comments, data, research results, and other information related to the following topics:

Please provide any evidence or other information supporting your comments. Also, provide the definition of “premium cigar,” “youth,” and “young adult” used for the studies, information, or views provided in your responses.

1. Explain what data may be used to assess (a) the universe of cigar products that are currently available to consumers and (b) their relevant characteristics, including “premium” status. How can available sources of information, such as manufacturer registrations and/or product listings with FDA, be used in this assessment?

2. Explain what you believe to be the particular defining characteristics of premium cigars. These characteristics could include, but not be limited to:

a. Size (e.g., length, ring gauge, total weight).

b. Tobacco filler type and minimum required percentages of each filler per cigar.

c. Fermentation type.

d. Wrapper and binder composition (e.g., whole leaf, reconstituted or homogenized tobacco leaf).

e. Where the tobacco used for premium cigar filler or wrappers is grown, and whether differences in growing practices for that tobacco, as compared to tobacco used in other cigars, result in different health impacts.

f. Presence or absence of a filter.

g. Presence or absence of a mouthpiece.

h. Manufacturing and assembly process (e.g., including any production by hand or by machine).

i. Rate of production (e.g., “produced at no more than [insert number] units per minute”).

j. Presence or absence of flavor imparting compounds, flavor additives, or characterizing flavors other than tobacco.

k. Presence or absence of any additives other than cigar glue.

l. Nicotine content.

m. Tar delivery amounts (and how this should be defined and measured).

n. Carbon monoxide delivery amounts (and how this should be defined and measured).

o. Retail price.

p. Frequency with which price changes are initiated by particular levels in the distribution chain (retailers, manufacturers, importers, and/or distributors).

q. Packaging quantity and size.

r. Any action directed to consumers, by a retailer or manufacturer, such as through labeling, advertising, or marketing, which would reasonably be expected to result in consumers believing that the tobacco product is a premium cigar.

3. If available to you, provide annual sales data, including market size and volume, for products that you believe should be categorized as premium cigars, along with the information's source and the definition of “premium cigar” used in the data provided.

If available to you, provide the following information related to the use patterns of premium cigars generally and among youth and young adults specifically:

1. Studies or information regarding the potential role of premium cigars on tobacco initiation and progression to use of other tobacco products, especially compared and contrasted against the potential roles of other cigars.

2. Studies or information regarding behavioral data related to dual use of premium cigars and other tobacco products, especially compared and contrasted against dual use of other cigars.

3. Studies or information regarding the frequency and intensity (e.g., number of cigars smoked per day, depth of smoke inhalation, number of days smoking during a particular time period) of premium cigar use, especially compared and contrasted against other cigars.

4. Studies or information regarding the proportion of premium cigar smokers showing symptoms of dependence, especially compared and contrasted against other cigars.

5. Studies or information regarding the abuse liability of premium cigars compared with other tobacco products, especially compared and contrasted against other cigars.

6. Studies or information regarding the impact of premium cigar labeling, advertising, and marketing efforts on patterns of use, especially compared and contrasted against other cigars.

7. Information on the extent to which users of other tobacco products might switch to premium cigars if FDA were to exempt premium cigars from regulation or to regulate premium cigars differently from other cigars, and the measures that could be taken to prevent this from occurring. Where you discuss the potential effects of FDA regulating premium cigars differently from other cigars, please describe the specific different treatment that you envision.

If available to you, provide the following information related to public health considerations:

1. Studies or information on any applicable manufacturing, marketing, sale, distribution, advertising, labeling, and/or packaging requirements and restrictions in the FD&C Act and its implementing regulations, and whether they should be applied differently to premium cigars compared to other tobacco products, including other cigars.

2. Studies or information regarding nicotine concentrations for premium cigars compared to other tobacco products, including other cigars.

3. Studies or information regarding the risk of oral cancer, esophageal cancer, laryngeal cancer, lung cancer, or any other form of cancer associated with premium cigars, especially compared and contrasted with risks for other cigars.

4. Studies or information regarding the risk of heart disease associated with premium cigars, especially compared and contrasted with risks for other cigars.

5. Studies or information regarding the risk of aortic aneurysm associated with premium cigars, especially compared and contrasted with risks for other cigars.

6. Studies or information regarding the risk of periodontal disease associated with premium cigars, especially compared and contrasted with risks for other cigars.

7. Studies or information regarding the risk of stroke associated with premium cigars, especially compared and contrasted with risks for other cigars.

8. Studies or information regarding the risk of chronic obstructive pulmonary disease associated with premium cigars, especially compared and contrasted with risks for other cigars.

9. Studies or information regarding risk of cancers of the mouth and throat for premium cigar users who do not inhale or who report that they do not inhale, especially compared and contrasted with risks for other cigars.

10. Studies or information on the impact of premium cigar use on other public health endpoints, including users and non-users, especially compared and contrasted with the impact of other cigars.

11. Studies or information regarding the addictiveness of premium cigars.

12. Studies or information regarding consumer perceptions of the health risks of premium cigars when compared to other tobacco products, including other cigars.

13. Studies or information regarding consumer perceptions of the addictiveness of premium cigars, especially compared and contrasted with perceptions for other cigars.

14. Studies or information on the required warning statements, shown below and which will be required to appear on cigar packaging and advertising in the near future (21 CFR 1143.5(a)(1)). Comment on whether any additional or alternative warning statements would be appropriate and provide your suggested language and any relevant studies or information.

a. WARNING: Cigar smoking can cause cancers of the mouth and throat, even if you do not inhale.

b. WARNING: Cigar smoking can cause lung cancer and heart disease.

c. WARNING: Cigars are not a safe alternative to cigarettes.

d. WARNING: Tobacco smoke increases the risk of lung cancer and heart disease, even in nonsmokers.

e. WARNING: Cigar use while pregnant can harm you and your baby; or SURGEON GENERAL WARNING: Tobacco Use Increases the Risk of Infertility, Stillbirth and Low Birth Weight.

f. WARNING: This product contains nicotine. Nicotine is an addictive chemical.

The following reference is on display in the Dockets Management Staff (see ADDRESSES) and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at https://www.regulations.gov. FDA has verified the website address, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

On June 8, 2016 (81 FR 36826), MSHA published a request for information (RFI) on Exposure of Underground Miners to Diesel Exhaust. The RFI sought input from the public that will help MSHA evaluate the Agency's existing standards and policy guidance on controlling miners' exposures to diesel exhaust and to evaluate the effectiveness of the protections now in place to preserve miners' health.

MSHA held four public meetings on the RFI in 2016 (81 FR 41486), and the comment period was scheduled to close on September 6, 2016; however, in response to requests from the public, MSHA extended the comment period until November 30, 2016 (81 FR 58424).

Also in response to requests from stakeholders during the comment period, MSHA and the National Institute for Occupational Safety and Health convened a Diesel Exhaust Health Effects Partnership (Partnership) with the mining industry, diesel engine manufacturers, academia, and representatives of organized labor to gather information regarding the complex questions contained in the RFI. The Partnership provides an opportunity for all relevant stakeholders from the mining community to come together to understand the health effects from underground miners' exposure to diesel exhaust. The Partnership also provides stakeholders an opportunity to consider best practices and new technologies, including engineering controls that enhance control of diesel exhaust exposures to improve protections for miners.

The first meeting of the Partnership was held on December 8, 2016, in Washington, Pennsylvania; and the second meeting was held on September 19, 2017, in Triadelphia, West Virginia. During the comment period and at the first Partnership meeting, MSHA received requests from stakeholders to reopen the rulemaking record for comment on the RFI and allow the comment period to remain open during the Partnership proceedings. In response to those requests, MSHA reopened the record for comment and extended the comment period for one year, until January 9, 2018 (82 FR 2284).

However, since the close of the RFI rulemaking record, MSHA received additional stakeholder requests to reopen the record and further extend the comment period on the RFI during the Partnership proceedings. In response, MSHA is reopening the record and extending the comment period to March 26, 2019. The reopening of the rulemaking record for public comments will allow all interested parties an additional opportunity to re-evaluate all issues related to miners' exposure to diesel exhaust and to determine if improvements can be made.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number).

2. Follow directions—EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

4. Describe any assumptions and provide any technical information and/or data that you used.

5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

6. Provide specific examples to illustrate your concerns, and suggest alternatives.

7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

8. Make sure to submit your comments by the comment period deadline identified.

This rulemaking addresses submissions from the Maine Department of Environmental Protection (ME DEP). The state submitted its infrastructure SIP for each NAAQS on the following dates: 2008 Pb—August 21, 2012; 2008 ozone—June 7, 2013; and 2010 NO2—June 7, 2013. Also, on April 23, 2013, Maine DEP submitted a SIP revision to incorporate conflict of interest state law provisions into the SIP from 38 Maine Revised Statutes Annotated (MRSA) Section 341-C(7) and 5 MRSA Section 18. The April 23, 2013 SIP revision addresses element E(ii) requirements. Furthermore, on February 14, 2013, Maine submitted a SIP revision addressing amendments to certain provisions of 06-096 Code of Maine Regulations (CMR) Chapters 100 and 115. The February 14, 2013 SIP revision both defines PM2.5 and incorporates PM2.5 into the Prevention of Significant Deterioration (PSD) permitting program. This submission was supplemented on May 31, 2016. EPA approved these SIP revisions on August 1, 2016 (81 FR 50353) and June 24, 2014 (79 FR 35695). These revisions address element A, as well as elements C, D(i)(II), and (J) as they relate to PSD. Finally, on March 1, 2018, Maine submitted a letter providing information and clarification in support of its infrastructure SIP submittals.

Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for the NAAQS already meet those requirements.

EPA highlighted this statutory requirement in an October 2, 2007 guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour ozone and PM2.5 National Ambient Air Quality Standards” (2007 Memo). On September 25, 2009, EPA issued an additional guidance document pertaining to the 2006 PM2.5 NAAQS entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)” (2009 Memo), followed by the October 14, 2011, “Guidance on Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)” (2011 Memo). Most recently, EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” on September 13, 2013 (2013 Memo). The SIP submissions referenced in this rulemaking pertain to the applicable requirements of sections 110(a)(1) and (2) and address the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

EPA is acting upon the SIP submissions from Maine that address the infrastructure requirements of CAA sections 110(a)(1) and (2) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

The requirement for states to make an infrastructure SIP submission arises out of CAA sections 110(a)(1) and (2). Pursuant to these sections, each state must submit a SIP that provides for the implementation, maintenance, and enforcement of each primary or secondary NAAQS. States must make such SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a new or revised NAAQS.” This requirement is triggered by the promulgation of a new or revised NAAQS and is not conditioned upon EPA's taking any other action. Section 110(a)(2) includes the specific elements that “each such plan” must address.

EPA commonly refers to such SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA.

This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources (“SSM” emissions) that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP-approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final New Source Review (NSR) Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas separately. A detailed history, interpretation, and rationale for EPA's approach to infrastructure SIP requirements can be found in EPA's May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” See 79 FR 27241 at 27242-45.

EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. Historically, EPA has elected to use non-binding guidance documents to make recommendations for states' development and EPA review of infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. EPA guidance applicable to these infrastructure SIP submissions is embodied in several documents. Specifically, attachment A of the 2007 Memo (Required Section 110 SIP Elements) identifies the statutory elements that states need to submit in order to satisfy the requirements for an infrastructure SIP submission. The 2009 Memo provides additional guidance for certain elements regarding the 2006 PM2.5 NAAQS, and the 2011 Memo provides guidance specific to the 2008 Pb NAAQS. Lastly, the 2013 Memo identifies and further clarifies aspects of infrastructure SIPs that are not NAAQS-specific.

EPA is soliciting comment on our evaluation of Maine's infrastructure SIP submissions in this notice of proposed rulemaking. In each of Maine's submissions, a detailed list of Maine Laws and, previously SIP-approved Air Quality Regulations, show precisely how the various components of Maine's EPA-approved SIP meet each of the requirements of section 110(a)(2) of the CAA for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS, as applicable. The following review evaluates the state's submissions in light of section 110(a)(2) requirements and relevant EPA guidance.

This section (also referred to in this action as an element) of the Act requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance, and other related matters. However, EPA has long interpreted emission limits and control measures for attaining the standards as being due when nonattainment planning requirements are due.1 In the context of an infrastructure SIP, EPA is not evaluating the existing SIP provisions for this purpose. Instead, EPA is only evaluating whether the state's SIP has basic structural provisions for the implementation of the NAAQS.

Maine's infrastructure submittals for this element cite Maine laws and regulations that include enforceable emissions limitations and other control measures, means or techniques, as well as schedules and timetables for compliance to meet the applicable requirements of the CAA. Maine DEP statutory authority with respect to air quality is set out in 38 MRSA Chapter 4, “Protection and Improvement of Air.” Legislative authority giving DEP general authority to promulgate Regulations is codified at 38 MRSA Chapter 2, Subchapter 1: “Organization and Powers.” 2 Statutory authority to establish emission standards and regulations implementing ambient air quality standards is contained in 38 MRSA Chapter 4, sections 585 and 585-A.

The Maine submittals cite more than two dozen specific rules that the state has adopted to control the emissions of Pb, volatile organic compounds 3 (VOCs), and NOX. A few, with their EPA approval citation are listed here: 06-096 Code of Maine Regulations (CMR) Chapter 102, “Open Burning Regulation” (73 FR 9459, February 21, 2008); 06-096 CMR Chapter 103, “Fuel Burning Equipment Particulate Emission Standard” (50 FR 7770, February 26, 1985); and 06-096 CMR Chapter 130, “Solvent Cleaners” (70 FR 30367, May 26, 2005); Chapter 152, “Control of Emissions of Volatile Organic Compounds from Consumer Products” (77 FR 30216, May 22, 2012). The Maine regulations listed above were previously approved into the Maine SIP by EPA. See 40 CFR 52.1020. Furthermore, on August 21, 2012, Maine submitted a SIP revision containing Maine's updated Chapter 110, “Ambient Air Quality Standards.” The updates to Maine's regulation relevant to today's action include updating Maine's ambient air quality standards to be consistent with the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. EPA approved this SIP revision on June 24, 2014 (79 FR 35695).

Based upon EPA's review of Maine's infrastructure SIP submittals and Maine's updated Chapter 110 SIP submittal, EPA proposes that Maine meets the infrastructure SIP requirements of section 110(a)(2)(A) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. As previously noted, EPA is not proposing to approve or disapprove any existing state provisions or rules related to SSM or director's discretion in the context of section 110(a)(2)(A).

This section requires SIPs to include provisions to provide for establishing and operating ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request. Each year, states submit annual air monitoring network plans to EPA for review and approval. EPA's review of these annual monitoring plans includes our evaluation of whether the state: (i) Monitors air quality at appropriate locations throughout the state using EPA-approved Federal Reference Methods or Federal Equivalent Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in a timely manner; and (iii) provides EPA Regional Offices with prior notification of any planned changes to monitoring sites or the network plan.

Pursuant to authority granted to it by 38 MRSA §§ 341-A(1) and 584-A, Maine DEP operates an air quality monitoring network, and EPA approved the state's most recent Annual Air Monitoring Network Plan for Pb, ozone, and NO2 on August 23, 2017.4 Furthermore, ME DEP populates AQS with air quality monitoring data in a timely manner, and provides EPA with prior notification when considering a change to its monitoring network or plan. EPA proposes that ME DEP has met the infrastructure SIP requirements of section 110(a)(2)(B) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements. The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers the following: (i) Enforcement of SIP measures; (ii) PSD program for major sources and major modifications; and (iii) a permit program for minor sources and minor modifications.

Maine's authority for enforcing SIP measures is established in 38 MRSA Section 347-A, “Violations,” 38 MRSA Section 347-C, “Right of inspection and entry,” 38 MRSA Section 348, “Judicial Enforcement,” 38 MRSA Section 349, “Penalties,” and 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations,” and includes processes for both civil and criminal enforcement actions. Construction of new or modified stationary sources in Maine is regulated by 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations,” which requires best available control technology (BACT) controls for PSD sources, including for Pb, PM2.5, VOC and NOX. EPA proposes that Maine has met the enforcement of SIP measures requirements of section 110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

Prevention of significant deterioration (PSD) applies to new major sources or modifications made to major sources for pollutants where the area in which the source is located is in attainment of, or unclassifiable with regard to, the relevant NAAQS. Maine DEP's EPA-approved PSD rules, contained at 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations,” contain provisions that address applicable requirements for all regulated NSR pollutants, including Greenhouse Gases (GHGs).

EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NOX as a precursor to ozone. See 70 FR 71679. This requirement was codified in 40 CFR 51.166, and requires that states submit SIP revisions incorporating the requirements of the rule, including provisions that would treat NOX as a precursor to ozone provisions. These SIP revisions were to have been submitted to EPA by states by June 15, 2007. See 70 FR 71683.

Maine has adopted, and EPA has approved, rules addressing the changes to 40 CFR 51.166 required by the Phase 2 Rule, including amending its SIP to include NOX and VOC as precursor pollutants to ozone, in order to define what constitutes a “significant” increase in actual emissions from a source of air contaminants. See 81 FR 50353 (August 1, 2016). Therefore, we propose to approve Maine's infrastructure SIP submittals for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS with respect to the requirements of the Phase 2 Rule and the PSD sub-element of section 110(a)(2)(C).

On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM2.5 and other pollutants that contribute to secondary PM2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM2.5, otherwise known as precursors. In the 2008 rule, EPA identified precursors to PM2.5 for the PSD program to be SO2 and NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The 2008 NSR Rule also specifies that VOCs are not considered to be precursors to PM2.5 in the PSD program unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOCs in an area are significant contributors to that area's ambient PM2.5 concentrations.

The explicit references to SO2, NOX, and VOCs as they pertain to secondary PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of identifying pollutants that are precursors to PM2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define “significant” for PM2.5 to mean the following emissions rates: 10 tons per year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 tpy of NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011. See 73 FR 28321 at 28341.5

On August 1, 2016, EPA approved revisions to Maine's PSD program at 81 FR 50353 that identify SO2 and NOX as precursors to PM2.5 and revise the state's regulatory definition of “significant” for PM2.5 to mean 10 tpy or more of direct PM2.5 emissions, 40 tpy or more of SO2 emissions, or 40 tpy or more of NOX emissions.

The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM2.5 and PM10 emission limits in NSR permits. Instead, EPA determined that states had to account for PM2.5 and PM10 condensables for applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits beginning on or after January 1, 2011. See 73 FR 28321 at 28334. This requirement is codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a).

Maine's SIP-approved PSD program defines PM2.5 and PM10 emissions in such a manner that gaseous emissions which would condense under ambient conditions are treated in an equivalent manner as required by EPA's definition of “regulated air pollutant” in 40 CFR 51.166((b)(49)(i)(a). EPA approved these definitions into the SIP on August 1, 2016. See 81 FR 50353. Consequently, we propose that the state's PSD program adequately accounts for the condensable fraction of PM2.5 and PM10. Therefore, we propose to approve Maine's infrastructure SIP submittals for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS with respect to the requirements of the 2008 NSR Rule and the PSD sub-element of section 110(a)(2)(C).

On October 20, 2010 (75 FR 64864), EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). This rule established several components for making PSD permitting determinations for PM2.5, including a system of “increments,” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c). On June 24, 2014 (79 FR 35695), EPA approved PM2.5 increments in 06-096 CMR Chapter 110 of Maine's regulations.

The 2010 NSR Rule also established a new “major source baseline date” for PM2.5 as October 20, 2010, and a new trigger date for PM2.5 of October 20, 2011 in the definition of “minor source baseline date.” These revisions are codified in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of “baseline area” to include a level of significance (SIL) of 0.3 micrograms per cubic meter (µg/m3), annual average, for PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 40 CFR 52.21(b)(15)(i). On August 1, 2016, EPA approved revisions to the Maine SIP that address EPA's 2010 NSR rule. See 81 FR 50353. Therefore, with respect to the 2010 NSR Rule and the PSD sub-element of section 110(a)(2)(C), we are proposing to approve Maine's infrastructure SIP submittals for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

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

On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of BACT.

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

On August 19, 2015, EPA amended its PSD and title V regulations to remove from the Code of Federal Regulations portions of those regulations that the DC Circuit specifically identified as vacated. EPA intends to further revise the PSD and title V regulations to fully implement the Supreme Court and DC Circuit rulings in a separate rulemaking. This future rulemaking will include revisions to additional definitions in the PSD regulations.

Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the additional planned revisions to EPA's PSD regulations. EPA is not expecting states to have revised their PSD programs in anticipation of EPA's additional actions to revise its PSD program rules in response to the court decisions for purposes of infrastructure SIP submissions. Instead, EPA is only evaluating such submissions to assure that the state's program addresses GHGs consistent with both the court decision, and the revisions to PSD regulations that EPA has completed at this time.

On October 5, 2012 (77 FR 49404), EPA approved revisions to the Maine SIP that modified Maine's PSD program to establish appropriate emission thresholds for determining which new stationary sources and modification projects become subject to Maine's PSD permitting requirements for their GHG emissions. Therefore, EPA has determined that Maine's SIP is sufficient to satisfy Elements (C), (D)(i)(II), and (J) with respect to GHGs. The Supreme Court decision and subsequent DC Circuit judgment do not prevent EPA's approval of Maine's infrastructure SIP as to the requirements of Elements (C), (as well as sub-elements (D)(i)(II), and (J)(iii)).

For the purposes of today's rulemaking on Maine's infrastructure SIPs, EPA reiterates that NSR Reform is not in the scope of these actions.

In summary, we are proposing to approve Maine's submittals for this sub-element with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

To address the pre-construction regulation of the modification and construction of minor stationary sources and minor modifications of major stationary sources, an infrastructure SIP submission should identify the existing EPA-approved SIP provisions and/or include new provisions that govern the minor source pre-construction program that regulate emissions of the relevant NAAQS pollutants. EPA last approved revisions to Maine's minor NSR program on August 1, 2016 (81 FR 50353). Maine and EPA rely on the existing minor NSR program in 06-096 CMR Chapter 115 to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

We are proposing to find that Maine has met the requirement to have a SIP-approved minor new source review permit program as required under Section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

This section contains a comprehensive set of air quality management elements pertaining to the transport of air pollution with which states must comply. It covers the following five topics, categorized as sub-elements: Sub-element 1, Contribute to nonattainment, and interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility protection; Sub-element 4, Interstate pollution abatement; and Sub-element 5, International pollution abatement. Sub-elements 1 through 3 above are found under section 110(a)(2)(D)(i) of the Act, and these items are further categorized into the four prongs discussed below, two of which are found within sub-element 1. Sub-elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act and include provisions insuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement.

Section 110(a)(2)(D)(i)(I) addresses any emissions activity in one state that contributes significantly to nonattainment, or interferes with maintenance, of the NAAQS in another state. The EPA sometimes refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance).

With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the physical properties of Pb prevent it from experiencing the same travel or formation phenomena as, for example, PM2.5 or ozone. Specifically, there is a sharp decrease in Pb concentrations as the distance from a Pb source increases. Accordingly, although it may be possible for a source in a state to emit Pb at a location and in such quantities that contribute significantly to nonattainment in, or interference with maintenance by, any other state, EPA anticipates that this would be a rare situation, e.g., sources emitting large quantities of Pb in close proximity to state boundaries. The 2011 Memo suggests that the applicable interstate transport requirements of section 110(a)(2)(D)(i)(I) with respect to Pb can be met through a state's assessment as to whether or not emissions from Pb sources located in close proximity to its borders have emissions that impact a neighboring state such that they contribute significantly to nonattainment or interfere with maintenance in that state.

Maine's infrastructure SIP submission for the 2008 Pb NAAQS states that Maine has no Pb sources that exceed, or even approach, 0.5 ton/year. No single source of Pb, or group of sources, anywhere within the state emits enough Pb to cause ambient concentrations to approach the Pb NAAQS. Our review of the Pb emissions data from Maine sources, which the state has entered into the EPA National Emissions Inventory (NEI) database, confirms this, and therefore, EPA agrees with Maine and proposes that Maine has met this set of requirements related to section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.

Maine's June 7, 2013 infrastructure SIP submission for the 2010 NO2 NAAQS does not address section 110(a)(2)(D)(i)(I). Therefore, EPA is not taking any action with respect to this sub-element for the NO2 NAAQS for Maine at this time. Maine's June 7, 2013 infrastructure SIP submission for the 2008 ozone NAAQS likewise does not address section 110(a)(2)(D)(i)(I). However, Maine subsequently submitted a SIP revision on October 26, 2015, addressing this sub-element and EPA approved this SIP revision on October 13, 2016 (81 FR 70631).

Therefore, EPA proposes to approve Maine's submittal for the 2008 Pb NAAQS for sub-element 1 of section 110(a)(2)(D)(i)(I).

One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to be in any other state's SIP under Part C of the Act to prevent significant deterioration of air quality. One way for a state to meet this requirement, specifically with respect to those in-state sources and pollutants that are subject to PSD permitting, is through a comprehensive PSD permitting program that applies to all regulated NSR pollutants and that satisfies the requirements of EPA's PSD implementation rules. For in-state sources not subject to PSD, this requirement can be satisfied through a fully-approved nonattainment new source review (NNSR) program with respect to any previous NAAQS. EPA last approved revisions to Maine's NNSR regulations on February 14, 1996, (61 FR 5690)

To meet requirements of Prong 3, Maine cites to Maine's PSD permitting programs under 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations,” to ensure that new and modified major sources of Pb, NOX, and VOC emissions do not contribute significantly to nonattainment or interfere with maintenance of those standards. As noted above in our discussion of Element C, Maine's PSD program fully satisfies the requirements of EPA's PSD implementation rules. Consequently, we are proposing to approve Maine's infrastructure SIPs for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS related to section 110(a)(2)(D)(i)(II) for the reasons discussed under Element C.

With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011 Memo, and 2013 Memo state that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze. A fully approved regional haze SIP meeting the requirements of 40 CFR 51.308 will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility. Maine's Regional Haze SIP was approved by EPA on April 24, 2012 (77 FR 24385). Accordingly, EPA proposes that Maine has met the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 126 relating to interstate pollution abatement. Section 126(a) requires new or modified sources to notify neighboring states of potential impacts from the source. The statute does not specify the method by which the source should provide the notification. States with SIP-approved PSD programs must have a provision requiring such notification by new or modified sources. A lack of such a requirement in state rules would be grounds for disapproval of this element.

EPA-approved regulations require the Maine DEP to provide pre-construction notice of new or modified sources to, among others, “any State . . . whose lands may be affected by emissions from the source or modification.” See 06-096 CMR Chapter 115, § IX(E)(3); approved March 23, 1993 (58 FR 15422). Such notice “shall announce availability of the application, the Department's preliminary determination in the form of a draft order, the degree of increment consumption that is expected from the source or modification, as well as the opportunity for submission of written public comment.” See 06-096 CMR Chapter 115, § IX(E)(2). These provisions are consistent with EPA's PSD regulations and require notice to affected states of a determination to issue a draft PSD permit. Regarding section 126(b), no source or sources within the state are the subject of an active finding with respect to the particular NAAQS at issue. Consequently, EPA proposes to approve Maine's infrastructure SIP submittals for this sub-element with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

One portion of section 110(a)(2)(D)(ii) requires each SIP to contain adequate provisions requiring compliance with the applicable requirements of section 115 relating to international pollution abatement. There are no final findings under section 115 against Maine with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. Therefore, EPA is proposing that Maine has met the applicable infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to section 115 of the CAA (international pollution abatement) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

This section requires each state to provide for adequate personnel, funding, and legal authority under state law to carry out its SIP and related issues. Additionally, Section 110(a)(2)(E)(ii) requires each state to comply with the requirements with respect to state boards under section 128. Finally, section 110(a)(2)(E)(iii) requires that, where a state relies upon local or regional governments or agencies for the implementation of its SIP provisions, the state retain responsibility for ensuring adequate implementation of SIP obligations with respect to relevant NAAQS. This last sub-element, however, is inapplicable to this action, because Maine does not rely upon local or regional governments or agencies for the implementation of its SIP provisions.

Maine, through its infrastructure SIP submittals, has documented that its air agency has the requisite authority and resources to carry out its SIP obligations. Maine cites to 38 MRSA § 341-A, “Department of Environmental Protection,” 38 MRSA § 341-D, “Board responsibilities and duties,” 38 MRSA § 342, “Commissioner, duties” and 38 MRSA § 581, “Declaration of findings and intent.” These statutes provide the ME DEP with the legal authority to enforce air pollution control requirements and carry out SIP obligations with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. Additionally, state law provides the ME DEP with the authority to assess preconstruction permit fees and annual operating permit fees from air emissions sources and establishes a general revenue reserve account within the general fund to finance the state clean air programs. Maine also receives CAA sections 103 and 105 grant funds through Performance Partnership Grants along with required state-matching funds to provide funding necessary to carry out SIP requirements. Chapter 8 of the 1972 ME SIP describes the resources and manpower estimates for ME DEP. Finally, Maine states, in its June 7, 2013 submittal for 2008 ozone, that for FY 2012, the Bureau of Air Quality had a staff of 59, and a budget of $5.7 million. EPA proposes that Maine has met the infrastructure SIP requirements of this portion of section 110(a)(2)(E) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

Section 110(a)(2)(E) also requires each SIP to contain provisions that comply with the state board requirements of section 128 of the CAA. That provision contains two explicit requirements: (1) That any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter, and (2) that any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.

As mentioned earlier, the Maine DEP consists of a Commissioner and a Board of Environmental Protection (“BEP” or “Board”), which is an independent authority under state law that reviews certain permit applications in the first instance and also renders final decisions on appeals of permitting actions taken by the Commissioner as well as some enforcement decisions by the Commissioner. Because the Board has authority under state law to hear appeals of some CAA permits and enforcement orders, EPA considers that the Board has authority to “approve” those permits or enforcement orders, as recommended in the 2013 Guidance at 42, and that the requirement of CAA § 128(a)(1) applies to Maine — that is, that “any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits and enforcement orders under this chapter.”

Pursuant to state law, the BEP consists of seven members appointed by the Governor, subject to confirmation by the State Legislature. See 38 MRSA § 341-C(1). The purpose of the Board “is to provide informed, independent and timely decisions on the interpretation, administration and enforcement of the laws relating to environmental protection and to provide for credible, fair and responsible public participation in department decisions.” Id. § 341-B. State law further provides that Board members “must be chosen to represent the broadest possible interest and experience that can be brought to bear on the administration and implementation of” Maine's environmental laws and that “[a]t least 3 members must have technical or scientific backgrounds in environmental issues and no more than 4 members may be residents of the same congressional district.” Id. § 341-C(2). EPA proposes to find that these provisions fulfill the requirement that at least a majority of Board members represent the public interest but do not address the requirement that at least a majority “not derive any significant portion of their income from persons subject to” air permits and enforcement orders. Furthermore, section 341-C is not currently in Maine's SIP. By letter dated March 1, 2018, however, DEP committed to revise section 341-C to address the CAA § 128(a)(1) requirement that at least a majority of Board members “not derive a significant portion of their income from persons subject to” air permits or enforcement orders and to submit, for inclusion in the SIP, the necessary provisions to EPA within one year of EPA final action on these infrastructure SIPs. Consequently, EPA proposes to conditionally approve Maine's submittals for this requirement of CAA § 128(a)(1).

With respect to the requirements in § 128(a)(2) (regarding potential conflicts of interest), on April 23, 2013, Maine submitted 5 MRSA § 18 and 38 MRSA § 341-C(7) to EPA and requested that they be incorporated into the Maine SIP. Pursuant to 5 MRSA § 18(2), “[a]n executive employee commits a civil violation if he personally and substantially participates in his official capacity in any proceeding in which, to his knowledge, any of the following have a direct and substantial financial interest: A. Himself, his spouse or his dependent children; B. His partners; C. A person or organization with whom he is negotiating or has agreed to an arrangement concerning prospective employment; D. An organization in which he has a direct and substantial financial interest; or E. Any person with whom the executive employee has been associated as a partner or a fellow shareholder in a professional service corporation pursuant to Title 13, chapter 22-A, during the preceding year.” Section 18 defines “executive employee” to include, among others, “members of the state boards.” Id. § 18(1). Moreover, 38 MRSA § 341-C(7) specifically provides that the state's conflict of interest provisions at 5 MRSA § 18 apply to Board members. Section 18 further provides that “[e]very executive employee shall endeavor to avoid the appearance of a conflict of interest by disclosure or by abstention” and that, for purposes of this requirement, the term “`conflict of interest' includes receiving remuneration, other than reimbursement for reasonable travel expenses, for performing functions that a reasonable person would expect to perform as part of that person's official responsibility as” a Board member. Id. § 18(7). EPA proposes that 5 MRSA § 18 and 38 MRSA § 341-C(7) satisfy the conflict of interest requirements of CAA § 128(a)(2) with respect to members of a board that approves permits or enforcement orders and proposes to incorporate them into the Maine SIP.

As noted above, section 128(a)(2) of the Act provides that “any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.” (emphasis added). As EPA has explained in other infrastructure SIP actions, the purpose of section 128(a)(2) is to assure that conflicts of interest are disclosed by the ultimate decision maker in permit or enforcement order decisions. See, e.g., 80 FR 42446, 42454 (July 17, 2015). Although the Board is the ultimate decision maker on air permitting decisions in Maine, certain air enforcement orders of the DEP Commissioner are not reviewable by the Board, but rather may be appealed directly to Maine Superior Court. For this reason, EPA interprets the potential conflict of interest requirements of CAA § 128(a)(2) to be applicable in Maine to both Board members and the DEP Commissioner. Pursuant to 38 MRSA § 341-A(3)(D), however, the Commissioner of DEP “is subject to the conflict-of-interest provisions of” 5 MRSA § 18, thus satisfying this requirement. Because Maine has not yet submitted 38 MRSA § 341-A(3)(D) for inclusion in the SIP, but by letter dated March 1, 2018, has committed to doing so within one year of EPA's final action on Maine's infrastructure SIP submissions, EPA proposes to conditionally approve Maine's submissions for the conflict of interest requirement with respect to the DEP Commissioner.

States must establish a system to monitor emissions from stationary sources and submit periodic emissions reports. Each plan shall also require the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources. The state plan shall also require periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and correlation of such reports by each state agency with any emission limitations or standards established pursuant to this chapter. Lastly, the reports shall be available at reasonable times for public inspection.

Maine's infrastructure submittals reference several existing state regulations previously approved by EPA that require sources to monitor emissions and submit reports. The first is 06-096 CMR Chapter 117, “Source Surveillance.” This regulation specifies which air emission sources are required to operate continuous emission monitoring systems (CEMS) and details the performance specifications, quality assurance requirements and procedures for such systems, and subsequent record keeping and reporting requirements. Maine also references EPA-approved 06-096 CMR Chapter 137, “Emission Statements,” which requires sources to monitor and report annually to DEP emissions of criteria pollutants and other emissions-related information under certain circumstances. EPA most recently approved Chapter 137 into the SIP on May 1, 2017. See 82 FR 20257.

In addition, Maine refers to its regulations implementing its operating permit program pursuant to 40 CFR part 70: 06-096 CMR Chapter 140, “Part 70 Air Emission License Regulations.” This regulation, although not in the SIP, identifies the sources of air emissions that require a Part 70 air emission license and incorporates the requirements of Title IV and Title V of the Clean Air Act, as amended, 42 U.S.C. 7401, et seq.; and 38 MRSA §§ 344 and 590. This regulation contains compliance assurance requirements regarding monitoring and reporting for licensed sources requiring a Part 70 air emission license. The regulation was approved by EPA on October 18, 2001 (66 FR 52874). Finally, Maine references 06-096 CMR Chapter 115, “Major and Minor Source Air Emission License Regulations.” This regulation contains compliance assurance requirements for licensed sources and stipulates that licenses shall include the following compliance assurance elements:(a) A description of all required monitoring and analysis procedures or test methods required under the requirements applicable to the source;(b) A description of all recordkeeping requirements; and (c) A description of all reporting requirements. While Chapter 140 and the referenced provisions of Chapter 115 are not formally approved into Maine's SIP, they are legal mechanisms the state can use to assure the enforcement of the monitoring requirements approved in the SIP.

Regarding the section 110(a)(2)(F) requirements that the SIP provide for the correlation and public availability of emission reports, Maine's emission statement rule, Chapter 137, requires facilities to report emissions of air pollutants on an annual basis. The DEP uses a web-based electronic reporting system, the Maine Air Emissions Inventory Reporting System (“MAIRIS”), for this purpose that allows it to package and electronically submit reported emissions data to EPA under the national emission inventory (NEI) program. NEI data are available to the public. See www.epa.gov/air-emissions-inventories/national-emissions-inventory-nei. The MAIRIS system is structured to electronically correlate reported emissions with permit conditions and other applicable standards, and identify all inconsistencies and potential compliance concerns.

Furthermore, pursuant to DEP's EPA-approved regulations, “Except as expressly made confidential by law; the commissioner shall make all documents available to the public for inspection and copying including the following: 1. All applications or other forms and documents submitted in support of any license application: 2. All correspondence, into or out of the Department, and any attachments thereto . . . .” See 06-096 CMR Chapter 1, § 6(A). Furthermore, “The Commissioner shall keep confidential only those documents which may remain confidential pursuant to 1 MRSA Section 402.” Id. § 6(B). In its August 21, 2012, submittal, DEP certified that, “[e]xcept as specifically exempted by the Maine statute (1 MRSA Chapter 13 Public Records and Proceedings), Maine makes all records, reports or information obtained by the MEDEP or referred to at public hearings available to the public.” Maine DEP further certified therein that the reports required under 117 and 137 are “available to the public . . . pursuant to Maine law.” We also note that the Maine Freedom of Access Law does not expressly make emissions statements confidential, 1 MRSA § 402, and that, pursuant to DEP's EPA-approved regulations, “[i]nformation concerning the nature and extent of the emissions of any air contaminant by a source”—which includes emission reports—“shall not be confidential.” See 06-096 CMR Chapter 115, § IX(B)(1). By letter dated March 1, 2018, Maine further certified that Maine's Freedom of Access law does not include any exceptions that apply to stationary source emissions. For these reasons, we propose to find that Maine satisfies the requirement that emissions statements be available at reasonable times for public inspection.

Finally, in the March 1, 2018, letter, DEP also certified that there are no provisions in Maine law that would prevent the use of any credible evidence of noncompliance, as required by 40 CFR 51.212. See also 06-096 CMR Chapter 140, § 3(E)(7)(a)(v) (“Notwithstanding any other provision in the State Implementation Plan approved by the EPA or Section 114(a) of the CAA, any credible evidence may be used for the purpose of establishing whether a person has violated or is in violation of any statute, regulation, or Part 70 license requirement.”). For the above reasons, EPA is proposing to approve Maine's submittals for this requirement of section 110(a)(2)(F) for the 2008 ozone, 2008 Pb, and 2010 NO2 NAAQS.

This section requires that a plan provide for state authority comparable to that provided to the EPA Administrator in section 303 of the CAA, and adequate contingency plans to implement such authority. Section 303 of the CAA provides authority to the EPA Administrator to seek a court order to restrain any source from causing or contributing to emissions that present an “imminent and substantial endangerment to public health or welfare, or the environment.” Section 303 further authorizes the Administrator to issue “such orders as may be necessary to protect public health or welfare or the environment” in the event that “it is not practicable to assure prompt protection . . . by commencement of such civil action.”

We propose to find that a combination of state statutes and regulations discussed in Maine's submittals and a March 1, 2018 DEP letter provides for authority comparable to that given the Administrator in CAA section 303, as explained below. First, 38 MRSA § 347-A, “Emergency Orders,” provides that “[w]henever it appears to the commissioner, after investigation, that there is a violation of the laws or regulations [DEP] administers or of the terms or conditions of any of [DEP's] orders that is creating or is likely to create a substantial and immediate danger to public health or safety or to the environment, the commissioner may order the person or persons causing or contributing to the hazard to immediately take such actions as are necessary to reduce or alleviate the danger.” See 38 MRSA § 347-A(3). Section 347-A further authorizes the DEP Commissioner to initiate an enforcement action in state court in the event of a violation of such emergency order issued by the Commissioner. Id. § 347-A(1)(A)(4). Similarly, 38 MRSA § 348, “Judicial Enforcement,” authorizes DEP to institute injunction proceedings “[i]n the event of a violation of any provision of the laws administered by [DEP] or of any order, regulation, license, permit, approval, administrative consent agreement or decision of the board or commissioner.” Id. § 348(1). Section 348 also authorizes DEP to seek a court order to a restrain a source if it “finds that the discharge, emission or deposit of any materials into any waters, air or land of th[e] State constitutes a substantial and immediate danger to the health, safety or general welfare of any person, persons or property.” Id. § 348(3). Thus, these provisions authorize DEP to issue an administrative order or to seek a court order to restrain any source from causing or contributing to emissions that present an imminent and substantial endangerment to public health or welfare, or the environment, if there is also a violation of a law, regulation, order, or permit administered or issued by DEP, as the case may be.

Second, by letter dated March 1, 2018, Maine also cites to 38 MRSA § 591, “Prohibitions,” as contributing to its authority. Section 591 provides that “[n]o person may discharge air contaminants into ambient air within a region in such manner as to violate ambient air quality standards established under this chapter or emission standards established pursuant to section 585, 585-B or 585-K.” In those cases where emissions of NO2, Pb, ozone, or ozone precursors may be causing or contributing to an “imminent and substantial endangerment to public health or welfare, or the environment,” a violation of § 591 would also occur, since Maine law provides that ambient air quality standards are designed to prevent “air pollution,” id. § 584, which state law expressly defines as “the presence in the outdoor atmosphere of one or more air contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant or animal life or to property, or which unreasonably interfere with the enjoyment of life and property,” id. § 582(3) (emphasis added). In its March 1, 2018 letter, Maine further explains that sections 347-A and 591 “together authorize the Commissioner to issue an emergency order upon finding an apparent violation of DEP laws or regulations to address emissions of criteria pollutants, air contaminants governed by standards promulgated under section 585, and hazardous air pollutants governed by standards promulgated under section 585-B.”

Third, in the unlikely event that air emissions are creating a substantial or immediate threat to the public health, safety or to the environment without violating any DEP law, regulation, order, or permit, emergency authority to issue an order to restrain a source may also be exercised pursuant to 37-B MRSA § 742, “Emergency Proclamation.” Maine explains that the DEP Commissioner can notify the Governor of an imminent “disaster,” and the Governor can then exercise authority to “declare a state of emergency in the State or any section of the State.” See 37-B MRSA § 742(1)(A). State law defines “disaster” in this context to mean “the occurrence or imminent threat of widespread or severe damage, injury or loss of life or property resulting from any natural or man-made cause, including, but not limited to . . . air contamination.” Id. § 703(2). Upon the declaration of a state of emergency, the Governor may, among other things, “[o]rder the termination, temporary or permanent, of any process, operation, machine or device which may be causing or is understood to be the cause of the state of emergency,” id. § 742(1)(C)(11), or “[t]ake whatever action is necessary to abate, clean up or mitigate whatever danger may exist within the affected area,” id. § 742(1)(C)(12). Thus, even if there may otherwise be no violation of a DEP-administered or -issued law, regulation, order, or permit, state authorities exist to restrain the source.

Finally, Maine's submittals cite 06-096 CMR Chapter 109, “Emergency Episode Regulations,” which sets forth various emission reduction plans intended to prevent air pollution from reaching levels that would cause imminent and substantial harm and recognizes the Commissioner's authority to issue additional emergency orders pursuant to 38 MRSA § 347-A, as necessary to the health of persons, by restricting emissions during periods of air pollution emergencies. For these reasons, we propose to find that Maine's submittals and certain state statutes and regulations provide for authority comparable to that provided to the Administrator in CAA § 303.

Section 110(a)(2)(G) also requires that, for any NAAQS, Maine have an approved contingency plan for any Air Quality Control Region (AQCR) within the state that is classified as Priority I, IA, or II. See 40 CFR 51.152(c). A contingency plan is not required if the entire state is classified as Priority III for a particular pollutant. Id. All AQCRs in Maine are classified as Priority III areas for NO2 and ozone, pursuant to 40 CFR 52.1021. Consequently, as relevant to this proposed rulemaking action, Maine's SIP does not need to contain an emergency contingency plan meeting the specific requirements of 51.152 with respect to NO2 and ozone. Moreover, we note that Pb is not explicitly included in the contingency plan requirements of 40 CFR subpart H. In any event, as discussed earlier in this document with respect to Element D(i)(I), according to EPA's 2014 NEI, there are no Pb sources within Maine that exceed, or even approach, EPA's reporting threshold of 0.5 tons per year. Although not expected, if Pb conditions were to change, Maine DEP does have general authority, as noted previously, to order a source to immediately take such actions as are necessary to reduce or alleviate a danger to public health or safety or to the environment.

EPA proposes that Maine has met the applicable infrastructure SIP requirements for section 110(a)(2)(G) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

This section requires that a state's SIP provide for revision from time to time as may be necessary to take account of changes in the NAAQS or availability of improved methods for attaining the NAAQS and whenever the EPA finds that the SIP is substantially inadequate. To address this requirement, Maine's infrastructure submittals reference 38 MRSA § 581, “Declaration of findings and intent,” which characterizes the state's laws regarding the Protection and Improvement of Air as an exercise of “the police power of the State in a coordinated state-wide program to control present and future sources of emission of air contaminants to the end that air polluting activities of every type shall be regulated in a manner that reasonably insures the continued health, safety and general welfare of all of the citizens of the State; protects property values and protects plant and animal life.” In addition, we note that Maine DEP is required by statute to “prevent, abate and control the pollution of the air[, to] preserve, improve and prevent diminution of the natural environment of the State[, and to] protect and enhance the public's right to use and enjoy the State's natural resources.” See 38 MRSA § 341-A(1). Furthermore, DEP is authorized to “adopt, amend or repeal rules and emergency rules necessary for the interpretation, implementation and enforcement of any provision of law that the department is charged with administering.” Id. § 341-H(2); see also id. § 585-A (recognizing DEP's rulemaking authority to propose SIP revisions). These statutes give Maine DEP the power to revise the Maine SIP from time to time as may be necessary to take account of changes in the NAAQS or availability of improved methods for attaining the NAAQS and whenever the EPA finds that the SIP is substantially inadequate.

EPA proposes that Maine has met the infrastructure SIP requirements of CAA section 110(a)(2)(H) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

The CAA requires that each plan or plan revision for an area designated as a nonattainment area meet the applicable requirements of part D of the CAA. Part D relates to nonattainment areas. EPA has determined that section 110(a)(2)(I) is not applicable to the infrastructure SIP process. Instead, EPA takes action on part D attainment plans through separate processes.

The evaluation of the submissions from Maine with respect to the requirements of CAA section 110(a)(2)(J) are described below.

States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.

Pursuant to state law, Maine DEP is authorized to, among other things, “educate the public on natural resource use, requirements and issues.” See 38 MRSA § 341-A(1). State law further provides that one of the purposes of the BEP is “to provide for credible, fair and responsible public participation in department decisions,” id. § 341-B, and authorizes it to “cooperate with other state or federal departments or agencies to carry out” its responsibilities, id. § 341-F(6). Furthermore, pursuant to Maine's EPA-approved regulations, the DEP is required to provide notice to relevant municipal officials and FLMs, among others, of DEP's preparation of a draft permit for a new or modified source. See 06-096 CMR Chapter 115, § IX(E)(3); approved March 23, 1993 (58 FR 15422). In addition, with respect to area reclassifications to Class I, II, or III for PSD purposes, the DEP is required to offer an opportunity for a public hearing and to consult with appropriate FLMs. See 38 MRSA § 583-B; and also 06-096 CMR Chapter 114, § 1(E). Maine's Transportation Conformity rule at 06-096 CMR Chapter 139 also provides procedures for interagency consultation, resolution of conflicts, and public consultation and notification. Finally, the Maine Administrative Procedures Act (Maine Revised Statutes Title 5, Chapter 375, subchapter 2) requires notification and provision of comment opportunities to all parties affected by proposed regulations. All SIP revisions undergo public notice and opportunity for hearing, which allows for comment by the public, including local governments.

EPA proposes that Maine has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

Section 110(a)(2)(J) also requires states to: Notify the public if NAAQS are exceeded in an area; advise the public of health hazards associated with exceedances; and enhance public awareness of measures that can be taken to prevent exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality.

As mentioned elsewhere in this notice, state law directs Maine DEP to, among other things, “prevent, abate and control the pollution of the air . . . improve and prevent diminution of the natural environment of the State [, and] protect and enhance the public's right to use and enjoy the State's natural resources.” See 38 MRSA § 341-A(1). State law also authorizes DEP “educate the public on natural resource use, requirements and issues. Id. § 341-A(1). To that end, the ME DEP makes real-time and historical air quality information available on its website. The agency also provides extended range air quality forecasts, which give the public advanced notice of air quality events. This advance notice allows the public to limit their exposure to unhealthy air and enact a plan to reduce pollution at home and at work. The ME DEP forecasts daily ozone and particle levels and issues these forecasts to the media and to the public via its website, telephone hotline and email. DEP states in its submittals that, in the event that a Pb monitor is established in Maine in the future, the Department will also put the data collected from such a monitor on its website. Alerts include information about the health implications of elevated pollutant levels and list actions to reduce emissions and to reduce the public's exposure. In addition, Air Quality Data Summaries of the year's air quality monitoring results are issued annually and posted on the ME DEP Bureau of Air Quality website. Maine is also an active partner in EPA's AirNow and EnviroFlash air quality alert programs.

EPA proposes that Maine has met the infrastructure SIP requirements of this portion of section 110(a)(2)(J) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

States must meet applicable requirements of section 110(a)(2)(C) related to PSD. Maine's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II) and, as we have noted, fully satisfies the requirements of EPA's PSD implementation rules. Consequently, we are proposing to approve the PSD sub-element of section 110(a)(2)(J) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS, consistent with the actions we are proposing for sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).

With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus, as noted in EPA's 2013 Memo, we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

To satisfy Element K, the state air agency must demonstrate that it has the authority to perform air quality modeling to predict effects on air quality of emissions of any NAAQS pollutant and submission of such data to EPA upon request. Maine state law implicitly authorizes DEP to perform air quality monitoring and provide such modeling data to EPA upon request. See 38 MRSA §§ 341-A(1), 581, 591-B. In addition, Maine cites 06-096 CMR Chapter 115, which requires an applicant to provide a demonstration, that may include air-quality modeling, that shows its emissions will not violate the NAAQS. We note that EPA-approved Chapter 115 requires DEP to notify EPA of any PSD application, see § IX(E), and that EPA-approved 06-096 CMR Chapter 1 requires DEP to make “[a]ll applications or other forms and documents submitted in support of any license application” publicly available. See § 6(A)(1), which naturally includes EPA. In its August 21, 2012 submittal, DEP further states that it performs modeling, provides modeling data to EPA upon request, and will continue to do both. Maine also cites to 06-096 Chapter 116, “Prohibited Dispersion Techniques,” which includes regulations applicable to the State's air quality modeling consistent with federal requirements concerning stack height and other dispersion techniques, such as merging of plumes. These regulations also define the area surrounding the source where ambient air quality standards do not have to be met. Finally, Maine cites 06-096 CMR Chapter 140, which contains air quality modeling requirements for sources subject to 40 CFR part 70 that are analogous to those in Chapter 115. Maine also collaborates with the Ozone Transport Commission (OTC) and the Mid-Atlantic Regional Air Management Association and EPA in order to perform large-scale urban air shed modeling for ozone if necessary.

EPA proposes that Maine has met the infrastructure SIP requirements of section 110(a)(2)(K) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

This section requires SIPs to mandate that each major stationary source pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit. Maine implements and operates a Title V permit program. See 38 MRSA § 353-A; 06-096 CMR Chapter 140, which was approved by EPA on October 18, 2001 (66 FR 52874). To gain this approval, Maine demonstrated the ability to collect sufficient fees to run the program. See 61 FR 49289, 49291 (Sept. 19, 1996). Maine also notes in its submittals that the costs of all CAA permitting, implementation, and enforcement for new or modified sources are covered by Title V fees and that Maine state law provides for the assessment of application fees from air emissions sources for permits for the construction or modification of air contaminant sources and sets permit fees. See 38 MRSA §§ 353-A (establishing annual air emissions license fees), 352(2)(E) (providing that such fees “must be assessed to support activities for air quality control including licensing, compliance, enforcement, monitoring, data acquisition and administration”).

EPA proposes that Maine has met the infrastructure SIP requirements of section 110(a)(2)(L) for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

To satisfy Element M, states must consult with, and allow participation from, local political subdivisions affected by the SIP. Maine's infrastructure submittals reference the Maine Administrative Procedure Act, 5 MRSA Chapter 375, and explain that it requires public notice of all SIP revisions prior to their adoption, which allows for comment by the public, including local political subdivisions. In addition, Maine cites 38 MRSA § 597, “Municipal air pollution control,” which provides that municipalities are not preempted from studying air pollution and adopting and enforcing “air pollution control and abatement ordinances” that are more stringent than those adopted by DEP or that “touch on matters not dealt with” by state law. Finally, Maine cites Chapter 9 of Maine's initial SIP, which was approved on May 31, 1972 (37 FR 10842), and contains intergovernmental cooperation provisions.

EPA proposes that Maine has met the infrastructure SIP requirements of section 110(a)(2)(M) with respect to the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS.

As noted above, in the discussion of element E, on April 23, 2013, Maine submitted, and EPA is proposing to approve 38 MRSA § 341-C(7), “Conflict of Interest,” and 5 MRSA § 18, “Disqualification of executive employees from participation in certain matters,” into the SIP.

EPA is proposing to approve the infrastructure SIPs submitted by Maine for the 2008 Pb, 2008 ozone, and 2010 NO2 NAAQS. The state submitted its infrastructure SIP for each NAAQS on the following dates: 2008 Pb—August 21 2012; 2008 ozone—June 7, 2013; and 2010 NO2—June 7, 2013. Also, we are proposing to approve into the SIP, Maine's conflict of interest provisions found in 38 MRSA Section 341-C(7) and 5 MRSA Section 18, which DEP submitted as a SIP revision on April 23, 2013. Specifically, EPA's proposed actions regarding each infrastructure SIP requirement are contained in Table 1 below.

In the above table, the key is as follows:

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

Categories and entities potentially regulated by this proposed rule include:

This Table is not intended to be exhaustive, but rather provides a guide for readers regarding entities potentially regulated by this proposed rule. To determine whether your facility is affected you should examine the applicability criteria in the amended New Hampshire Asbestos Management and Control Rule. If you have questions regarding the applicability of any aspect of this action to a particular entity, please contact the person identified in the “For Further Information Contact” section.

Do not submit information containing CBI to the EPA through https://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, a copy of the comments that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. Send or deliver information identified as CBI only to the following address: “EPA-R01-OAR-2017-0641,” Susan Lancey, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square (mail code OEP05-2), Boston, MA 02109-3912.

Under CAA section 112(l), the EPA may approve state or local rules or programs to be implemented and enforced in place of certain otherwise applicable Federal rules, emissions standards, or requirements. The Federal regulations governing EPA's approval of state and local rules or programs under section 112(l) are located at 40 CFR part 63, subpart E. See 58 FR 62262 (November 26, 1993), as amended by 65 FR 55810 (September 14, 2000). Under these regulations, a state air pollution control agency has the option to request EPA's approval to substitute a state rule for the applicable Federal rule (e.g., the National Emission Standards for Hazardous Air Pollutants). Upon approval by the EPA, the state agency is authorized to implement and enforce its rule in place of the Federal rule, and the state rule becomes federally enforceable in that state.

The EPA first promulgated standards to regulate asbestos emissions on April 6, 1973. See 38 FR 8826. These standards have since been amended several times and re-codified in 40 CFR part 61, subpart M, “National Emission Standard for Asbestos” (Asbestos NESHAP). On January 11, 2013, the EPA approved the New Hampshire regulation Env-A 1800 titled “Asbestos Management and Control” (Asbestos Management and Control Rule) as a rule adjustment for the Asbestos NESHAP, applicable to all sources in New Hampshire except for inactive waste disposal sites not operated after July 9, 1981. See 78 FR 2333.1 These inactive disposal sites are regulated by other State rules that were also approved by the EPA on January 11, 2013. See id. 2

Under 40 CFR 63.91(e), within 90 days of any state amendment, repeal, or revision of any state rule approved as an alternative to a Federal requirement, the state must provide the EPA with a copy of the revised authorities and satisfy either 63.91(e)(1) or (e)(2). Under 63.91(e)(2), the State shall request approval of the revised rule. In a letter dated July 21, 2017, supplemented on August 21, 2017, September 21, 2017, and March 1, 2018, NH DES requested approval of its amended rules pertaining to asbestos management in New Hampshire. Specifically, NH requested approval of Env-A 1800 titled “Asbestos Management and Control,” effective as of May 5, 2017, Sections 1801-1807, Appendices B, C and D.3 The EPA has determined it is appropriate to consider the request to approve the amended Asbestos Management and Control Rule under the rule substitution criteria in 40 CFR 63.93.

A state must demonstrate that it has satisfied the up-front approval criteria contained in 40 CFR 63.91(d). The process of providing up-front approval assures that a state has met the delegation criteria in section 112(l)(5) of the CAA as implemented by EPA's regulations at 40 CFR 63.91(d). These criteria require, among other things, that the state has demonstrated that its NESHAP program contains adequate authorities to assure compliance with each applicable Federal requirement, adequate resources for implementation, and an expeditious compliance schedule. Under 40 CFR 63.91(d)(3), interim or final Title V program approval under 40 CFR part 70 satisfies the criteria set forth in 40 CFR 63.91(d) for up-front approval. On October 2, 1996, EPA promulgated interim approval of NH DES's operating permits program, and also approved New Hampshire's authority to implement and enforce unchanged section 112 standards for part 70 sources under 40 CFR 63.91. See 61 FR 51371. Subsequently, on September 24, 2001, EPA promulgated full approval of NH DES's operating permits program. See 66 FR 48806. Accordingly, NH DES has satisfied the up-front approval criteria of 40 CFR 63.91(d).

Additionally, the regulations governing approval of state requirements that substitute for a section 112 rule require EPA to evaluate the state's submittal to ensure that it meets the stringency and other requirements of 40 CFR 63.93. A rule will be approved if the state requirements contain or demonstrate: (1) Applicability criteria that are no less stringent than the corresponding Federal rule; (2) levels of control and compliance and enforcement measures that result in emission reductions from each affected source that are no less stringent than would result from the otherwise applicable Federal rule; (3) a compliance schedule that requires each affected source to be in compliance within a time frame consistent with the deadlines established in the otherwise applicable Federal rule; and (4) the additional compliance and enforcement measures as specified in 40 CFR 63.93(b)(4). See 40 CFR 63.93(b).

A state may also seek, and EPA may approve, a partial delegation of the EPA's authorities. See CAA 112(l)(1). To obtain a partial rule substitution, the state's submittal must meet the otherwise applicable requirements in 40 CFR 63.91 and 63.93, and be separable from the portions of the program that the state is not seeking rule substitution for. See 40 CFR 63.91(f)(3); 64 FR 1889, January 12, 1999.

Before we can approve alternative requirements in place of a part 61 emissions standard, the state must submit to us detailed information that demonstrates how the alternative requirements compare with the otherwise applicable Federal standard. A detailed discussion of how EPA will determine equivalency for state alternative NESHAP requirements is provided in the preamble to EPA's proposed subpart E amendments on January 12, 1999. See 64 FR 1908.

NH DES's amended Asbestos Management and Control Rule, effective as of May 5, 2017, continues to incorporate by reference most, but not all, of the federal national emission standards for hazardous air pollutants (40 CFR part 61, subpart M) for asbestos (Asbestos NESHAP). The following discussion compares those sections of 40 CFR part 61, subpart M that NH DES has not adopted with the applicable sections of New Hampshire's rule, demonstrating that New Hampshire's rule is in each case no less stringent than the federal rule, and then describes the material changes to NH's amended Asbestos Management and Control Rule, effective as of May 5, 2017.

The first three exceptions to NH's incorporation by reference of the Asbestos NESHAP under Env-A 1801.06(a), namely 40 CFR 61.145(c)(1)(i), 61.145(c)(1)(ii), and 61.145(c)(1)(iv), are demolition work practices that may be considered together. Section 61.145 contains the standard for asbestos demolition and renovation, subsection (c) contains the procedures for asbestos emission control, and paragraph (1) provides for the removal of all regulated asbestos-containing material (RACM), except RACM need not be removed before demolition if the criteria in paragraph (1) is met.

In Env-A 1805.10, unlike the federal rule, NH DES requires that all ACM without exception must be removed prior to demolition. Because New Hampshire's rule regulates a greater range of asbestos activity than the federal NESHAP, it contains applicability criteria no less stringent than those in the federal rule. See 40 CFR 63.93(b)(1).

The next exception to the federal rule in New Hampshire's rule is 40 CFR 61.149(c)(2). This section, together with §§ 61.150(a)(4), 61.151(c), 61.152(b)(3), 61.154(d) and 61.155(a), is non-delegable to the states under 40 CFR 61.157.

NH DES did not adopt 40 CFR 61.150(a)(5), which provides an exception to the standard for waste disposal for manufacturing, fabricating, demolition, renovation, and spraying operations. Section 61.150(a) provides that each owner or operator shall discharge no visible emissions during the collection, processing, packaging, or transporting of asbestos-containing waste material. Subparagraph (5) provides an exclusion for Category I and II nonfriable ACM. NH DES regulates both Category I and Category II nonfriable ACM in demolitions, and therefore did not adopt the provisions of 40 CFR 61.150(a). See Env-A 1805.10(a) and 1805.08. Similarly, NH DES did not adopt 40 CFR 61.150(b)(3). Paragraph 61.150(b) provides that all asbestos-containing waste material shall be deposited as soon as is practical by the waste generator at an approved site. Subparagraph 61.150(b)(3) excludes Category I nonfriable ACM that is not RACM. Again, NH DES has chosen to regulate this material. Because the amended Asbestos Management and Control Rule regulates a greater range of asbestos activity than the federal NESHAP, it contains applicability criteria that are no less stringent than the federal rule. See 40 CFR 63.93(b)(1).

NH DES did not adopt 40 CFR 61.151 with respect to disposal sites not operated after July 9, 1981. This is a special case covered by New Hampshire's waste management regulation Env-Sw 2100, which EPA has already approved in a separate action. See 78 FR 2333.

Finally, NH DES did not adopt 40 CFR 61.154(c). This section includes the standard for active waste disposal sites. Paragraph (c) provides an alternative to the “no visible emissions” standard of 40 CFR 61.154(a), but New Hampshire's rule is no less stringent than the federal rule in that it does not allow this alternative approach. See 40 CFR 63.93(b)(2).

In amending Env-A 1800, NH DES made some changes to Env-A 1800, editorial in nature, intended to clarify the Asbestos Management and Control Rule. NH DES also made other, material changes, which we discuss below.

In NH's amended Asbestos Management and Control Rule, NH added section Env-A 1801.05 which reads as follows: “Federal Definitions Incorporated. Terms used in this chapter that are defined in 40 CFR 61.141 shall be as reprinted in Appendix D, except for the following: (a) Asbestos; (b) Facility; (c) Regulated Asbestos-Containing Material (RACM); and (d) Remove.” These terms are defined in the amended Asbestos Management and Control Rule in either Env-A 1802 or Appendix C and include minor differences from the Asbestos NESHAP. As discussed in greater detail below, the EPA has determined that for each of the four terms NH did not incorporate, NH's regulation includes terms and requirements that are either equivalent to the terms in the Asbestos NESHAP or result in applicability criteria that are no less stringent than those in the NESHAP. See 40 CFR 63.93(b)(1).

Under 40 CFR 61.141, “Asbestos” is defined to mean “the asbestiform varieties of serpentinite (chrysotile), riebeckite (crocidolite), cummingtonite-grunerite, anthophyllite, and actinolite-tremolite”. In Appendix C of the State rule, NH defines “Asbestos” to mean “amosite, chrysotile, crocidolite, or asbestiform tremolite, actinolite, or anthophylite.” The mineral series cummingtonite-grunerite is also referred to as amosite. Therefore, EPA has determined NH's definition of asbestos is equivalent to the federal definition.

NH's definition of “Facility,” unlike the federal definition, does not explicitly exclude residential buildings having four or fewer dwelling units. See Env-A 1802.27. In addition, NH explicitly includes utility infrastructure in the definition of “Facility,” and includes a definition for “utility infrastructure” whereas the federal rule regulates utility infrastructures but the federal definition does not include an explicit reference to utility infrastructures. The federal definition of Facility, as found in the Asbestos NESHAP at 40 CFR 61.141, specifies that for purposes of this definition, any building, structure, or installation that contains a loft used as a dwelling is not considered a residential structure, installation, or building. NH did not incorporate this language because NH's rule applies to all residential buildings including residential buildings with fewer than four dwellings. The federal definition also specifies any structure, installation or building that was previously subject to this subpart is not excluded, regardless of its current use or function. NH includes this requirement in section Env-A 1801.02(d), rather than in the definition of Facility. Thus, EPA finds that these aspects of the NH rule result in applicability criteria no less stringent than the applicable NESHAP requirements. See 40 CFR 61.93(b)(1).

Under the Asbestos NESHAP, “Regulated asbestos-containing material (RACM)” is defined in 40 CFR 61.141 to mean “(a) Friable asbestos material, (b) Category I nonfriable ACM that has become friable, (c) Category I nonfriable ACM that will be or has been subjected to sanding, grinding, cutting, or abrading, or (d) Category II nonfriable ACM that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations regulated by this subpart.” NH's definition of RACM is nearly identical to the federal definition, except that NH uses the term “sawing” instead of “cutting” and NH's definition uses the phrase “will likely become” rather than “has a high probability of becoming.” NH's rule incorporates the federal Asbestos NESHAP definition of cutting at 40 CFR 61.141 which means “to penetrate with a sharp-edged instrument and includes sawing, but does not include shearing, slicing, or punching.” In addition, NH's rule requires all ACM be removed prior to demolition, requires all ACM during renovation to be adequately wetted before removal and maintained wet during removal, and requires transport and disposal as specified in 40 CFR 61.150 of all ACM, whether RACM or not. See Env-A 1805.10(a), 1805.07, and 1805.08(c). Because sawing is referenced in the incorporated Asbestos NESHAP definition of cutting, and because NH's rule regulates all ACM, rather than RACM, during renovation, demolition and disposal, EPA finds this aspect of the NH rule to be no less stringent than the Asbestos NESHAP.

“Remove” is defined in 40 CFR 61.141 to mean “to take out RACM or facility components that contain or are covered with RACM from any facility.” NH's rule includes a definition for “Removal,” rather than “Remove.” Under the NH rule, “Removal” means “the stripping of any RACM from surfaces or components within or at a facility.” See Env-A 1802.42. The Asbestos NESHAP and the amended NH Asbestos Management and Control Regulation both use the term “Removal” as well as “Remove” in the regulatory text. NH's definition of “Removal” is similar to the Asbestos NESHAP definition of “Remove”. In addition to incorporating the federal requirements for removing RACM during renovation and demolition, NH's rule includes work practice standards for asbestos removal procedures which require all ACM to be adequately wetted before and during removal, and placed in leak-tight containers for disposal. See Env-A 1805.07. NH's rule also includes ACM disposal procedures which require the owner or operator to remove all packaged ACM, whether RACM or not, from the worksite. See Env-A 1805.08. EPA finds that because NH's regulatory text requires all ACM, i.e., not just RACM, to be placed into leak-tight containers and removed from the worksite, this aspect of NH's rule is no less stringent than the Asbestos NESHAP. Therefore, the EPA has determined that for each of the four terms NH did not incorporate, NH's regulation includes terms and requirements that are either equivalent to the terms in the Asbestos NESHAP, or result in applicability criteria that are no less stringent than those in the NESHAP. See 40 CFR 63.93(b)(1).

In the amended Asbestos Management and Control Rule, NH added section Env-A 1806 Alternative Requirements for Specific ACM which provides certain alternatives for asbestos abatement activities on vinyl asbestos floor tile, asbestos floor sheeting, asbestos roofing materials, asbestos siding and other preformed cementitious asbestos materials. Sections Env-A 1806.02, 1806.03(a), and 1806.04 provide alternatives to ACM that is not sanded, sawed, cut, drilled or otherwise treated to create a fine dust or particles. These alternatives do not apply to RACM so the NESHAP does not regulate these activities. Thus, the NH rule regulates a greater range of asbestos activity than the federal NESHAP, and contains applicability criteria and levels of control that are no less stringent than those in the federal rule. See 40 CFR 63.93(b)(1) and 63.93(b)(2). Env-A 1806.03(b) does include alternatives for asbestos containing roofing materials that are cut and therefore become RACM which is regulated by the NESHAP. Under the NESHAP, appendix A section III(A) 3.A.3, the EPA considers a roof removal project to be in compliance with the “adequately wet” and “discharge no visible emission” requirements of the NESHAP if the roof cutter is equipped with a blade guard that completely encloses the blade and water application is used at the roof surface during the cutting of the roof. Env-A 1806.03(b) permits (in lieu of otherwise applicable requirements at Env-A 1805.04, 1805.05, and 1805.09) a HEPA-filtered tool be used to prevent generation of visible emissions, together with water application at the point of abrasion with an airless sprayer and in sufficient volume so that no visible emissions result from the operation other than water spray. NH's work practice requires “no visible emissions” and does not exclude the requirements for ACM to be “adequately wet,” as the NESHAP work practice allows. See Env-A 1805.07 and Env-A 1806.04(b). The EPA has determined the requirements in Env-A 1806.03(b) are equivalent to the NESHAP and would result in emissions reductions from each affected source that are no less stringent than would result from the NESHAP. See 40 CFR 63.93(b)(2).

In addition to the changes described above, in the amended Asbestos Management and Control Rule, NH made the following changes. As an editorial change, NH moved its statutory definitions to Appendix C and moved the federal definitions incorporated to Appendix D. In addition, under Env-A 1805.08 Asbestos Disposal Procedures, NH added a requirement for packaged ACM to be removed from the worksite as soon as practicable, but in no event longer than 30 days following completion of the abatement work. The Asbestos NESHAP requires all asbestos containing waste material to be deposited as soon as practicable but does not specify a timeframe not to be exceeded. See 40 CFR 61.150(b). The EPA finds NH's requirement to be no less stringent than the compliance time frame established in the NESHAP. See 40 CFR 63.93(b)(3). The EPA has determined that these aspects of the State rule are no less stringent than the Asbestos NESHAP requirements.

In addition to incorporating the federal rule compliance monitoring requirements by reference, NH's rule specifies that the chapter applies to provisions for inspection, compliance monitoring, and enforcement by the department. See Env-A 1801.02(f) and 40 CFR 63.93(b)(4). In other aspects, the State rule imposes additional State requirements in addition to the federal requirements. A detailed comparison of the NH additional rule requirements and the federal requirements is available in NH's equivalency demonstration table available in the public docket. Because these State requirements simply add onto the federal requirements, they inherently are no less stringent than their federal counterparts. See 40 CFR 63.93(b)(2).

After reviewing the request for approval of NH DES's amended Asbestos Management and Control rule, the EPA has determined that this request meets all of the requirements necessary to qualify for a rule substitution approval under CAA section 112(l) and 40 CFR 63.91 and 63.93. Specifically, the EPA has preliminarily determined that NH DES's amended Asbestos Management and Control Rule is equivalent to or not less stringent than the Asbestos NESHAP as required by each of the criteria set forth in 40 CFR 63.93(b)(1)-(3), and satisfies the compliance and enforcement requirements in 40 CFR 63.93(b)(4), as the State rule applies to all sources in New Hampshire, except for inactive waste disposal sites not operated after July 9, 1981. Therefore, the EPA hereby proposes to approve NH DES's amended Asbestos Management and Control Rule, effective as of May 5, 2017, in lieu of the Asbestos NESHAP, for all sources in New Hampshire except for inactive waste disposal sites not operated after July 9, 1981.

The EPA is proposing to approve NH DES's amended rules in Env-A 1800, “Asbestos Management and Control,” effective as of May 5, 2017, Sections 1801-1807, Appendices B, C, and D (excluding the following provisions: 1801.02(e), 801.07, 1802.02, 1802.04, 1802.07-1802.09, 1802.13, 1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and 1803.05-1803.09) as a rule substitution for the Asbestos NESHAP, for all sources in New Hampshire except for inactive waste disposal sites not operating after July 9, 1981.

In this rulemaking, 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 New Hampshire's Env-A 1800, “Asbestos Management and Control,” effective as of May 5, 2017, Sections 1801-1807, Appendices B, C, and D; excluding the following provisions: 1801.02(e), 1801.07, 1802.02, 1802.04, 1802.07-1802.09, 1802.13, 1802.15-1802.17, 1802.25, 1802.31, 1802.37, 1802.40, 1802.44, and 1803.05-1803.09. The EPA is also proposing to incorporate by reference a letter from Clark B. Freise, Assistant Commissioner, Department of Environmental Services, State of New Hampshire, to David J. Alukonis, Interim Director, Office of Legislative Services, dated June 23, 2017, certifying that the copy of the rule enclosed with the letter, Env-A 1800, is the official version of this rule. The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and/or in hard copy at the appropriate EPA office.

Under the CAA, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. In reviewing section 112(l) submissions, EPA's role is to approve state choices, provided that they meet the criteria and objectives of the CAA and of EPA's implementing regulations. Accordingly, this action merely proposes to approve the State's request 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 (Public Law 104-4);

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

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

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

In addition, this rulemaking 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. It also does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). And it does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the EPA is not proposing to approve the submitted rule to apply in Indian country located in the State, and because the submitted rule will not impose substantial direct costs on Tribal governments or preempt Tribal law.

This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR.

VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions, and removals have been reviewed and concurred with by VA's Integrated Product Team of agency stakeholders.

The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are broken up consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, sections, and subsections.

The Office of Federal Procurement Policy Act, as codified in 41 U.S.C. 1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR.

When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873.

The VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authority that are removed from the VAAR will be included in the VA Acquisition Manual (VAAM) as internal agency guidance.

We propose to amend the authority for part 801 to remove the citation of 38 U.S.C. 501, and to add 41 U.S.C. 1121, 41 U.S.C. 1303, an updated positive law codification of, to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA; and 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer.

This proposed rule contains existing information collection requirements. The proposed rule would result in multiple actions affecting these information collections, including outright removal of the information collection and redesignating the information collection burden associated with several clauses or provisions by renumbering the clause or provision. We propose to revise certain clause or provision numbers in VAAR part 801 only when removing the actual information collection and its associated burden, or when redesignating and renumbering the clause or provision under the associated Office of Management and Budget (OMB) approval number.

In section 801.106, OMB approval under the Paperwork Reduction Act, we propose to amend section 801.106 table columns titled “48 CFR part or section where identified and described,” and “Current OMB control number.” We propose to remove the reference to section 832.006-4 and the associated OMB control number 2900-0688. This information collection burden under the associated OMB control number was previously removed via a published Notice of Office of Management and Budget Action dated March 2, 2015, Information Collection Reference (ICR) 201406-2900-017, which approved the removal of the information collection and a reduction of the associated burden under OMB approval number 2900-0688. Therefore, it is proposed for removal from this table. Information collection is approved at the FAR level under FAR OMB approval number 9000-0138, making it unnecessary for a separate information collection approval in the VAAR.

In section 801.106, OMB approval under the Paperwork Reduction Act, we propose to amend section 801.106 table columns titled “48 CFR part or section where identified and described,” and “Current OMB control number.” We propose to remove the reference to subsection 852.211-71, Special Notice, and discontinue the corresponding OMB control number 2900-0588, as the provision conflicts with FAR 52.214-21. It currently requires literature to be provided after award and thus conflicts with the FAR and the Government's procedures for evaluating relevant materials during source selection and prior to award decisions.

In section 801.106, in reference to the table described, we propose to remove the reference to subsection 852.211-73, Brand Name or Equal, and discontinue the corresponding OMB control number 2900-0585, as the topical area the clause covers, “brand name or equal,” or “items peculiar to one manufacturer,” has sufficient coverage in FAR 11.105 and the associated provision in FAR 52.211-6, Brand Name or Equal.

In section 801.106, in reference to the table described, we propose to remove the reference to section 852.236-82, Payments under fixed-price construction contracts (without NAS), and remove the reference to section 852.236-83, Payments under fixed-price construction contracts (including NAS). Both of these clauses, pertaining to “payments under fixed-price construction,” have been renumbered to reflect their prescription under Part 832. The associated OMB control number 2900-0422 will now reflect information collections under the new clause numbers—852.232-70 and 852.232-71 as described in further detail under the Paperwork Reduction Act section of this preamble, although these are not new collections.

We propose to revise the title of Subchapter B to conform to the title in the Federal Acquisition Regulation, 48 CFR, chapter 1, “Acquisition Planning.”

We propose to revise the Table of Contents to reflect the revision of subparts 811.1 and 811.2, and the deletion of subparts 811.4, 811.5, and 811.6.

We propose to revise the part 811 authorities to add 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer, and 41 U.S.C. 1303, an updated positive law codification to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA.

We propose to remove section 811.001, Definitions, because the coverage in FAR 11.104 provides adequate coverage of what brand name or equal purchase descriptions must include. The VAAR had merely paraphrased the same information. In accordance with FAR drafting standards and the requirement in FAR 1.304(b)(1) that agency acquisition regulations shall not unnecessarily repeat, paraphrase, or otherwise restate material contained in the FAR, this section is therefore proposed for removal.

In subpart 811.1, Selecting and Developing Requirements Documents, we propose to remove section 811.103, Market acceptance, and the underlying subsection 811.103-70, Technical industry standards. We propose to revise the prescription to clause 852.211-72, Technical industry standards, for clarity and simplification of the language, and to move the prescription of the clause to 811.204-70 to comport with the FAR structure, as technical industry standards are not related to coverage in FAR 11.103, but would fall under FAR 11.204.

We propose to remove the section title at 811.104, Use of Brand Name or Equal purchase descriptions, and subsection at 811.104-70, Brand name or equal purchase descriptions, because FAR 11.104, provides adequate coverage of what brand name or equal purchase descriptions must include.

We propose to remove subsections 811.104-71, Purchase description clauses, and 811.104-72, Limited application of brand name or equal, because the subject is adequately covered in FAR clause 52.211-6, Brand name or equal.

We propose to remove subsection 811.104-73, Bid samples, as coverage is adequate in FAR 14.202-4, and clause 52.214-20.

We propose to remove subsection 811.104-74, Bid evaluation and award, since it duplicates coverage in FAR clause 52.211-6.

We propose to remove subsection 811.104-75, Procedure for negotiated procurements, since there is no need to have separate policy and procedures for negotiated and sealed bid solicitations. FAR covers “brand name or equal” without a distinction between sealed bid and negotiated solicitations.

We propose to remove 811.105, Items peculiar to one manufacturer, since the subject is adequately covered in FAR 11.105.

In subpart 811.1, section 811.107, Contract clauses, we propose to amend the number and title of the existing section to read as 811.107-70, Contract clause, to better reflect its placement in accordance with FAR numbering conventions. It fits intelligibly as a supplement to FAR 11.107, Solicitation provision, but the VAAR is supplementing with a clause in this area and not a provision, necessitating the more accurate title. Subsection 811.107-70 prescribes a new clause 852.211-70, Equipment Operation and Maintenance Manuals, which replaces the existing clause 852.211-70, Service data manuals.

In subpart 811.2, Using and Maintaining Requirements Documents, we propose to remove section 811.202, Maintenance of standardization documents, as it is procedural in nature and will be moved to the VAAM.

Under subpart 811.2, we propose to revise and renumber section 811.204, Contract clause, to subsection 811.204-70, Contract clause, which contains text prescribing clause 852.211-72, Technical industry standards. The prescription for 852.211-72 was moved from 811.103-70 to better comport with FAR structure numbering and arrangement.

We propose to remove subparts 811.4, Delivery or Performance Schedules, and 811.5, Liquidated Damages, as the policy is redundant to FAR guidance.

We propose to remove subpart 811.6, Priorities and Allocations, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM.

We propose to revise the Table of Contents to reflect the revision of subparts 832.1, 832.2, 832.9 and 832.70, and the deletion of subparts 832.5, 832.8, and 832.11.

We propose to revise the part 832 authorities to add 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer; and 41 U.S.C. 1303, to include an updated positive law codification.

We propose to add section 832.001, Definitions. This section would add three definitions of terms relating to electronic invoicing. We propose to amend subsection 832.006-1, General, to spell out the title of Senior Procurement Executive (SPE) and to delete the last sentence as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM.

We propose to remove subsection 832.006-2, Definitions, which only included one definition for the Remedy Coordination Official (RCO). This information would be added in subsection 832.006-4 and would make the need for a separate definition repeating the same thing unnecessary.

We propose to remove subsection 832.006-3, Responsibilities, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM.

We propose to amend subsection 832.006-4, Procedures, to update the existing VA agency procedures and to delete paragraphs (a) and (c) as internal operating procedures of VA not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM. We propose to add new paragraphs (b), (e), and (g) to implement FAR required agency procedures which describes notifying contractors, the contractor's right to provide information on its behalf concerning a finding of fraud in payment requests, the time period to provide the information to the Government and that the Senior Procurement Executive (SPE) will provide a copy of each final determination and supporting documentation to the contractor, the RCO, the Contracting Officer, and the VA Office of Inspector General (OIG).

In subpart 832.1, Non-Commercial Item Purchase Financing, we propose to amend section 832.111, Contract clauses for non-commercial purchases, to renumber the section as subsection 832.111-70, retitle it as “VA contract clauses for non-commercial purchases,” and to reconfigure the paragraphs to conform more closely to FAR prescription language for clauses and provisions. Also, the clauses were renumbered to reflect that they are prescribed in part 832 and not 836 as they were previously numbered, and the clauses were retitled for clarification.

In subpart 832.2, Commercial Item Purchase Financing, we propose to remove section 832.201, Statutory authority, and move internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM. It contains a delegation of authority for Contracting Officers to make determinations regarding terms and conditions for payment for commercial items and whether they are appropriate, customary, and in the best interest of the Government.

We propose to amend subsection 832.202-1, Policy, to make the paragraph comport with the corresponding FAR coverage, to reflect that Heads of Contracting Activities (HCAs) shall report no later than December 31 of each calendar year, to the Senior Procurement Executive (SPE) and Deputy Senior Procurement Executive (DSPE), on the number of contracts for commercial items with unusual contract financing, commercial interim or advance payments that were approved for the previous fiscal year (1 October 20XX-30 September 20XX). This would stipulate what is to be included in the report, the amount of such unusual contracting financing, commercial interim or advance payments that were approved, and the kind and amount of security obtained by the contractor for the advance.

We propose to amend subsection 832.202-4, Security for Government financing, to make the paragraphs comport with the corresponding FAR coverage, and to delete the mention of a Dun and Bradstreet report.

In subpart 832.4, Advance Payments for Non-Commercial Items, we propose to amend 832.402, General, to provide updated and revised VA procedures on who in the VA is delegated authority to make the determination described at FAR 32.402(c)(1)(iii) and to approve contract terms concerning advance payments. This is delegated to the Head of the Contracting Activity (HCA). Typically VA delegations are contained in the VAAM but here, where it may impact the use and approval of unique financing arrangements that contractors may need to be aware of, the delegation is being retained in the VAAR.

We propose to amend section 832.404, Exclusions, to renumber the paragraphs so it better comports with the FAR coverage and to clarify language and the citation of the authorities listed. We include information regarding the applicability of 31 U.S.C. 3324(d)(2), which allows VA to issue advance payment for subscriptions or other charges for newspapers, magazines, periodicals, and other publications for official use. In addition, the statutory authority is included in section 832.404 for 31 U.S.C. 1535, and permits the VA to issue advance payment for services and supplies obtained from another Government agency. Further, language is added that includes that as permitted by 5 U.S.C. 4109, VA is permitted to issue advance payment for all or any part of the necessary expenses for training Government employees, including obtaining professional credentials under 5 U.S.C. 5757, in Government or non-Government facilities, including the purchase or rental of books, materials, and supplies or services directly related to the training of a Government employee.

We propose to remove subparts 832.5, Progress Payments Based on Costs and 832.8, Assignment of Claims, as both contain internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM.

In subpart 832.9, Prompt Payment, we propose to revise section 832.904, Determining payment due dates, to remove the text, but retain the title in the VAAR as it is related to a new proposed subsection that will fall underneath it. The procedures in the text will be moved to the VAAM as internal operational procedures of the VA.

We propose to add subsection 832.904-70 to implement OMB Memorandum M-11-32, dated September 14, 2011, and to encourage making payments to small business contractors within 15 days of receipt of invoice.

We propose to remove subpart 832.11, Electronic Funds Transfer, and section 832.1106, EFT mechanisms, as they contain internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM.

In subpart 832.70, Electronic Invoicing Requirements, we propose to amend section 832.7000, General, to reflect that the subpart contains policy requirements rather than procedures.

We propose to remove section 832.7001, Definitions, since two of the definitions are provided in the FAR and the other relevant definitions have been moved to section 832.001, Definitions, which covers the entire part. We propose to revise the title to reflect “Electronic payment requests,” and to reflect text now in section 832.7002.

We propose to remove section 832.7002, Electronic payment requests, as the content has been moved to 832.7001.

We propose to amend subsection 832.7002-1, Data transmission, to renumber and redesignate it as subsection 832.7001-1; to remove the website address from paragraph (a); to require the address to be provided in the contract; and to delete from paragraph (b) a website which may in time become obsolete.

We propose to amend subsection 832.7002-2, Contract clause, to renumber and redesignate it as subsection 832.7001-2. We also propose to add a stipulation to the prescription that the clause does not apply to contracts paid with the Governmentwide commercial purchase card.

In part 852, we propose to amend the authority by adding 41 U.S.C. 1303 to include an updated positive law codification, to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA.

We propose to amend section 852.211-70, Service data manuals, and to revise the title to read, “Equipment Operation and Maintenance Manuals.” This requires Contracting Officers to insert this revised clause in solicitations for technical medical equipment and devices, and/or other technical and mechanical equipment where the requiring activity determines manuals are a necessary requirement for operation and maintenance of the equipment. It removes the prior extensive detailed list of specific information that would need to be developed and instead relies on existing commercial industry practices to provide already developed commercial manuals.

We propose to remove subsection 852.211-71, Special Notice, as it is redundant to guidance contained in the FAR.

We propose to amend subsection 852.211-72, Technical industry standards, to more clearly set forth the requirements that the contractor shall conform to the standards reflected in the clause. It also requires the contractor to submit proof of conformance to the standard, how to obtain the standards and requires the offeror to contact the Contracting Officer if a response is not received within two weeks of the offeror's request.

We propose to remove subsections 852.211-73, Brand Name or Equal; 852.211-74, Liquidated Damages; and 852.211-75, Product Specifications, as they are all redundant to guidance contained in the FAR.

Also in part 852, we propose to add clause 852.232-70, Payments under fixed-price construction contracts (without NAS-CPM). This clause was formerly 852.236-82, Payments under fixed-price construction contracts (without NAS). This clause is revised to renumber it to 852.232-70 to reflect its prescription under part 832, and to revise the title of the “NAS” to “NAS-CPM,” to clarify the list of conditions in paragraph (c) for allowing progress payments for stored supplies and equipment, and to add a new paragraph (f) requiring notice to the contractor if retainage is to be made on a progress payment.

We propose to add clause 852.232-71, Payments under fixed-price construction contracts (including NAS-CPM). This clause was formerly 852.236-83, Payments under fixed-price construction contracts (including NAS). This clause is revised to renumber it as 852.232-71 to agree with its prescription in Part 832, to revise the title of the “NAS” to “NAS-CPM,” and to clarify the list of conditions in paragraph (c) for allowing progress payments for stored supplies and equipment, and to add a new paragraph (f) requiring notice to the contractor if retainage is to be made on a progress payment.

We propose to amend clause 852.232-72, Electronic Submission of Payment Requests, to revise the definition of “designated agency office,” and to delete a website address and system specifications.

We propose to delete the clauses 852.236-82, Payments Under Fixed-Price Construction Contracts (without NAS), and 852.236-83, Payments Under Fixed-Price Construction Contracts (including NAS) as they have been renumbered to comport with FAR arrangements and more properly belong in VAAR part 832 as noted above.

We propose to remove section 870.112, Telecommunications equipment, as it contains the prescription and requirement for review of descriptive literature required by the clause 852.211-71, Special notice, which is proposed for removal as noted elsewhere in the preamble.

We propose to remove section 870.113, Paid use of conference facilities, as it contains internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM.

Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA's implementation of its legal authority and publication of the Department of Veterans Affairs Acquisition Regulation (VAAR) for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with Federal Acquisition Regulation (FAR) subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts.

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

VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is not a significant regulatory action under E.O. 12866.

VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date. This proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis.

This proposed rule impacts seven existing information collection requirements associated with six Office of Management and Budget (OMB) control number approvals. The proposed actions in this rule result in multiple actions affecting some of these information collections, such as: the proposed outright removal of the information collection; no change in information collection burdens although titles and numbers may be changed or the clauses moved to other parts of the VAAR; a reduction in existing information collection burdens; and the proposed redesignation of the existing approved OMB collection numbers and the associated burden as a result of two clauses we propose to both retitle and renumber.

The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi).

This proposed rule would impose the following amended information collection requirements to two of the six existing information collection approval numbers associated with this proposed rule. Although this action contains provisions constituting collections of information at 48 CFR 852.236-82 and 852.236-83, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed collections of information are associated with these clauses. The information collection requirements for 48 CFR 852.236-82 and 852.236-83 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900-0422. However, this information collection has been submitted to OMB to revise the title and to redesignate and renumber the two clauses currently numbered as sections 852.236-82, Payments Under Fixed-Price Construction Contracts (without NAS), and 852.236-83, Payments Under Fixed-Price Construction Contracts (including NAS). Accordingly, if approved, they would reflect the new designation and revised titles as set forth in the preamble and the amendatory language of this proposed rule to read: 852.232-70, Payments Under Fixed-Price Construction Contracts (without NAS-CPM), and 852.232-71, Payments Under Fixed-Price Construction Contracts (including NAS-CPM), respectively, under the associated OMB control number 2900-0422. The references to the old numbers—852.236-82 and 852.236-83, would accordingly be removed. There is no change in the information collection burden that is associated with this proposed request. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted these information collection amendments to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document.

This proposed rule would impose the following amended information collection requirements to one of the six existing information collection approval numbers associated with this proposed rule. Although this action contains provisions constituting collections of information at 48 CFR 852.211-70, Service data manuals, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed information collection is associated with this clause. The information collection requirement for 48 CFR 852.211-70 is currently approved by OMB and has been assigned OMB control number 2900-0587. However, this information collection has been submitted to OMB to revise the title from “Service Data Manuals,” to read, “Equipment Operation and Maintenance Manuals.” We propose to reflect the revised title as set forth in the preamble and the amendatory language of this proposed rule for this clause to read: 852.211-70, Equipment Operation and Maintenance Manuals, under the associated OMB control number 2900-0587. We propose to remove the reference in the existing OMB control number to the old title. There is also a reduction in the information collection burden that is associated with this proposed request. The previously approved estimated annual hourly burden is 621 hours. As a result of revising the clause and removing the requirement to develop Government-specified service manuals, the VA has eliminated an unnecessary burden on the public by making use of commercial operation and maintenance manuals just like the general public and established commercial practices, thereby reducing by half the estimated annual hourly burden which is now estimated at 311 hours, a reduction of 310 annual hours. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document.

This proposed rule would remove two of the six existing information collection requirements associated with this action at 48 CFR 852.211-71, Special Notice, and 48 CFR 852.211-73, Brand Name or Equal. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), it discontinues the associated corresponding approved OMB control numbers, 2900-0588 and 2900-0585, respectively. As a result of this proposed rule, there is a removal in the information collection burden that is associated with the removal of these two information collection requirements. For 48 CFR 852.211-71, Special Notice, and its corresponding OMB control number 2900-0588, this results in a removal of 875 estimated annual burden hours. For 48 CFR 852.211-73, Brand Name or Equal, and its corresponding OMB control number 2900-0585, this results in a removal of 1,125 estimated annual burden hours. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document.

This proposed rule also contains two other provisions constituting a collection of information at 48 CFR 852.211-72, Technical industry standards, and 48 CFR 832.202-4, Security for Government financing, which remain unchanged. Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collection of information is associated with these provisions as a part of this proposed rule. The information collection requirements for 48 CFR 852.211-72 and 48 CFR 832.202-4 are currently approved by the OMB and have been assigned OMB control numbers 2900-0586 and 2900-0688, respectively. The burden of these information collections remains unchanged. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), the OMB has approved the reporting or recordkeeping provisions that are included in the clause and the text under section 832.202-4 cited above and has given the VA the following approval numbers: OMB 2900-0586 and OMB 2900-0688, respectively.

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. The overall impact of the proposed rule would be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating procedures. VA is merely adding existing and current regulatory requirements to the VAAR and removing any guidance that is applicable only to VA's internal operation processes or procedures. VA estimates no cost impact to individual business would result from these rule updates. This rulemaking does not change VA's policy regarding small businesses, does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. On this basis, the proposed rule would not have an economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

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

The Secretary of Veterans Affairs, or designee, approved this document 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. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on August 7, 2017, for publication.

For the reasons set out in the preamble, VA proposes to amend 48 CFR, chapter 8, parts 801, 811, 832, 852, and 870 as follows:

Submitting Comments

If you submit a comment, please include the docket number for this notice (FMCSA-2018-0037), indicate the specific section of this document and the Volpe report to which each comment applies, provide a reason for each suggestion or recommendation, and identify the source of any data informing your comment. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.

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

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

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

The Department of Transportation (DOT) solicits comments from the public to better inform its decision-making processes. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

On September 12, 2017, the Department published the Automated Driving Systems (ADS): A Vision for Safety 2.0. (Publication No. DOT HS 812 442) (the Voluntary Guidance). The Voluntary Guidance offers a path forward for the safe integration of automated vehicles by:

• Encouraging new entrants and ideas that deliver safer vehicles;

• Making the Departmental regulatory processes more nimble to help match the pace of private sector innovation; and,

• Supporting industry innovation and encouraging open communication with the public and with stakeholders.

The Voluntary Guidance is rooted in the Department's view that ADS-equipped vehicles hold enormous potential benefits for safety, mobility, and the efficiency of our transportation system. The primary focus of the Voluntary Guidance is on levels of ADS that can take full control of the driving tasks in at least some circumstances. Portions of the Voluntary Guidance also apply to lower levels of automation, including some of the driver assistance systems already being deployed by automakers today. The full document can be found at: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf.

The Voluntary Guidance adopts the SAE International (SAE) J3016 standard's definitions for levels of automation. The SAE definitions divide vehicles into levels based on “who does what, when.” Generally:

• SAE Level 0, No Driving Automation; the driver performs all driving tasks.

• SAE Level 1, Driver Assistance; the vehicle is controlled by the driver, but some driving assist features may be included in the vehicle design.

• SAE Level 2, Partial Driving Automation; the vehicle has combined automated functions, like acceleration and steering, but the driver must remain engaged with the driving task and monitor the environment at all times.

• SAE Level 3, Conditional Driving Automation; the driver is a necessity, but is not required to monitor the environment. The driver must be ready to take control of the vehicle at all times with notice.

• SAE Level 4, High Driving Automation; the vehicle is capable of performing all driving functions under certain conditions. The driver may have the option to control the vehicle.

• SAE Level 5, Full Driving Automation: the vehicle is capable of performing all driving functions under all conditions.

Using the SAE levels described above, the Department draws a distinction between Levels 0-2 and 3-5 based on whether the human driver or the automated system is primarily responsible for monitoring the driving environment. For the purposes of this Federal Register notice, the Agency's primary focus is SAE Levels 3-5 ADS.

FMCSA encourages the development of these advanced safety technologies for use on CMVs, and at the same time, recognizes the need to work with the States to ensure that, from an operations standpoint, all testing and use of these advanced safety systems is conducted in a manner that ensures the safe operation of ADS-equipped commercial vehicles.

FMCSA is responsible for the safety oversight of motor carriers operating CMVs in interstate commerce, the drivers of CMVs, and the vehicles. The Agency works with its State partners to deliver programs intended to prevent CMV crashes, and the associated injuries and fatalities.

The FMCSRs provide rules to ensure the safe operation of CMVs, as defined in 49 CFR 390.5, which includes vehicles with a gross vehicle weight/gross combination weight or gross vehicle weight rating/gross combination weight rating, whichever is greater, of 10,001 pounds or more; passenger-carrying vehicles designed or used to transport 9 to 15 passengers for direct compensation; passenger-carrying vehicles designed or used to transport 16 or more passengers; and any size vehicle transporting hazardous materials in a quantity requiring placards.

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

In addition to the public listening session discussed above, FMCSA commissioned Volpe to conduct a preliminary review of the FMCSRs to identify regulations that relate to the development and safe introduction of automated driving systems. FMCSA subsequently received from Volpe its final report, “Review of the Federal Motor Carrier Safety Regulations for Automated Commercial Vehicles: Preliminary Assessment of Interpretation and Enforcement Challenges, Questions, and Gaps,” report number MCSA-RRT-17-013, August 2017. A copy of the report is included in the docket referenced at the beginning of this notice.

Volpe found several provisions in the FMCSRs that might present challenges for automated CMVs that continue to require a human driver. Additionally, Volpe indicated that automated CMVs either requiring an onboard (non-driving) human technician or not requiring an onboard human at all may face compliance challenges. Volpe noted, however, that the nature and extent of these challenges will depend on how key terms and applicability statements are interpreted.

Notwithstanding the findings of the Volpe analysis, the Policy released on September 12, 2017, indicated (see page 2 of the publication) that FMCSA believes its regulations require that “a trained commercial driver must be behind the wheel at all times, regardless of any automated driving technologies available on the CMV, unless a petition for a waiver or exemption has been granted.” In light of the comments the Agency received in response to its April 17, 2017, request for public comments and the remarks of those in attendance at the April 24, 2017, public listening session, the Agency is reconsidering its views on this matter. The absence of specific regulatory text requiring a driver be behind the wheel may afford the Agency the flexibility to allow, under existing regulations, ADS to perform the driver's functions in the operational design domain in which the system would be relied upon, without the presence of a trained commercial driver in the driver's seat.

FMCSA notes that in the event regulatory relief is necessary to allow the operation of a commercial motor vehicle without a person in the driver's seat, the Agency has authority to grant waivers for up to three months, grant exemptions for up to five years (with the possibility of renewals of the exemptions), or allow pilot programs for up to three years, provided certain conditions are satisfied [see 49 CFR part 381].

To that end, the Agency seeks information concerning the extent to which the public, including industry, safety advocates, the motoring public, and those engaged in the design, development, testing, and integration of ADS for CMVs believe any of FMCSA's current safety regulations may hinder the testing and safe deployment of ADS-equipped CMVs, including, but not limited to, the regulations preliminarily identified by Volpe. In particular, the agency is interested in comments concerning how different interpretations of the applicability of FMCSRs to ADS-equipped CMVs could represent a barrier, e.g., whether the FMCSRs, under certain conditions, could be read to require, or not require, the presence of a trained commercial driver in the driver's seat. To the extent commenters do identify unnecessary barriers, how could FMCSA use its available regulatory relief mechanism to appropriately remove or reduce those barriers?

In addition to the issues in the Volpe Report, the agency also requests comment on how ADS-equipped CMVs could interact with certain specific regulations.

The FMCSRs require all CMVs to be systematically inspected, repaired, and maintained. All parts must be in safe and proper operating condition at all times. With limited exceptions, motor carriers are prohibited from operating a CMV unless there is proof that it has passed an annual inspection.

How should motor carriers ensure the proper functioning of ADS prior to operating in an automated mode?

Should the Agency consider minimum requirements for motor carrier personnel responsible for maintaining the equipment used to achieve certain levels of automated operations (for example, a requirement that technicians be trained by the ADS developers, etc.)?

What Information Technology (IT) security/safety assurances can be provided by maintenance personnel and CMV drivers/operators that the ADS systems are functioning properly?

For State representatives with experience inspecting traditional CMVs, what types of malfunctions or damage on an ADS-equipped CMV should be considered an imminent hazard? Do you have any additional comments regarding inspection, repair, and maintenance?

FMCSA and its State partners conduct roadside inspections of CMVs to identify and remove from service unsafe drivers and vehicles. The inspection criteria represent enforcement tolerances, which are thresholds for determining whether the level of noncompliance with the applicable safety regulations is severe enough to warrant placing the vehicle or driver out-of-service.

How could an enforcement official identify CMVs capable of various levels of automated operation? For example, should CMVs with ADS be visibly marked to indicate the level of automated operation they are designed to achieve, or would making these vehicles so easily identifiable cause other road users to interact unfavorably with CMVs with ADS?

Do you have any additional comments regarding roadside and annual inspections?

This section applies to situations involving a Level 3 human-monitored ADS. Current regulations prohibit individuals from texting and using hand-held wireless phones while driving CMVs in interstate commerce.

What changes, if any, should be made to the distracted driving regulations for human drivers of CMVs with ADS while in automated mode? For example, should a human driver in a CMV with ADS be allowed to use a hand-held wireless phone while the ADS is in complete control of the vehicle?

Should driver fatigue monitoring be required, and if so, what method(s) should be used to conduct such monitoring? For example, the Trucking Fatigue Meter [See https://pulsarinformatics.com/products/trucking] samples data throughout the day and alerts fleet managers once a human driver exceeds a company-determined fatigue threshold.

Additionally, should these systems be required to provide “alertness assistance” to human drivers? For example, should these systems be required to periodically request input from human drivers, or should they be required to request input from human drivers only when the driver appears to be losing focus or when the ADS in control of the vehicle is confronted with situations outside its parameters?

What level of human driver inattentiveness (or how long a period of inattentiveness) should be allowed in a vehicle controlled by an ADS before the vehicle is required to enter its minimal risk condition? How long after entering the minimal risk condition must a human driver wait to re-engage an ADS (e.g., a minimum 30-minute break may provide the driver an opportunity to rest)? What should the requirements be for re-engaging the CMV with ADS in an automated mode in this scenario?

FMCSA's regulations include physical qualification standards for humans driving CMVs to ensure that they are medically qualified to do so. As technology advances, humans may be required only to monitor the operation of CMVs with ADS on public roadways, or they may not be required at all. Thus, as technology develops, changes to the physical qualification rules will be required, and some medical conditions may become inapplicable.

What medical conditions currently precluding issuance of a medical card could become inapplicable as ADS technology develops?

What medical conditions currently precluding issuance of a medical card should NOT be considered disqualifying for a human driver who is simply monitoring a CMV with ADS?

FMCSA's regulations include requirements intended to reduce the risk of driver fatigue and fatigue-related crashes. Generally, the rules for truck drivers allow up to 11 hours driving time in the work day, following 10 consecutive hours off-duty. And all driving must be completed within 14 hours of the beginning of the work day. The rules prohibit driving after a driver has accumulated a certain amount of on-duty time (which includes the time spent driving and time spent performing other work) during the work week. Current regulations require that all time spent at the operating controls of the CMV be recorded as on-duty, driving time. Given the SAE levels of automation discussed above, FMCSA seeks public comments on how drivers' hours of service should be recorded if the ADS is relied upon to perform some or all of the driving tasks.

FMCSA requires all drivers of CMVs to have the knowledge and skills necessary to operate a CMV safely. States are required to include specific items in the knowledge and skills tests administered to CDL applicants. CDL applicants wishing to obtain specific endorsements must satisfy additional knowledge and skill test requirements. Existing endorsements include: Double/triple trailers, passenger, tank vehicle, hazardous materials, and school bus.

Due to potential variations in ADS technology across various providers, FMCSA seeks to ensure that human drivers and operators of CMVs with ADS receive training for the specific technologies present in the vehicles they operate.

Should an endorsement be considered for human drivers and operators of CMVs with ADS to ensure they (1) understand the capabilities and limitations of the advanced technologies, and (2) know when it is appropriate to rely on automatic rather than manual operation? If so, what types of tests—knowledge, skills, or both—should be required to obtain such an endorsement; and should there be separate endorsements for different types of ADS?

If an ADS-equipped CMV is to be deployed without a human driver onboard, should the computer system be required to demonstrate autonomous capabilities for the same maneuvers included on the CDL skills test?

FMCSA would like to ensure that the Agency is able to receive and review data and information from the private sector to understand a driver's experience with ADS technologies in real-world settings.

If you are a developer or tester of ADS technologies, what types of data and/or safety measures are you currently collecting—or do you plan to collect—during testing? How often is this data collected?

How can FMCSA ensure that data and/or safety measures collected are presented in a comparable format?

How can FMCSA assess whether a CMV equipped with an ADS is being operated as safely as a traditional CMV operating on a public roadway?

What pieces of information are entities using to evaluate how a driver is using an ADS- equipped commercial vehicle?

What type of ADS-equipped CMVs are currently being tested? Are they Level 4 ADS-equipped vehicles that can only operate on certain roadways, Level 4 vehicles with more extensive ODDs, or full Level 5 vehicles?

Do vehicles currently being tested have operational limitations to ensure safe operations? Examples of operational limitations might include time of day, weather conditions, types of roads, specific routes within an ODD, maximum allowable operational speed, markings showing that the vehicle is capable of highly automated operations, etc.

In moving forward what actions, if any, should FMCSA consider to ensure the safe operation of ADS-equipped CMV's in various ODDs?

How can FMCSA assess whether a CMV with ADS operating within its ODD can perform on certain maneuvers, such as emergency brake performance, crash avoidance maneuvers, etc.?

Should FMCSA consider approaching CMVs that carry persons or hazardous materials differently than other CMVs?

For State representatives, would you consider changing certain requirements (for example, higher versus lower levels of insurance) for an ADS-equipped CMV? If yes, based on what factors; and how would you implement such requirements?

On April 23, 2015, FMCSA issued an initial Federal Register notice seeking comment on the impacts of a possible “Beyond Compliance Program” to consider a company's voluntary implementation of state-of-the-art best practices and technologies when evaluating a carrier's safety (80 FR 22770).

The Fixing America's Surface Transportation (FAST) Act mandated that the Agency provide recognition to motor carriers for voluntary use of advanced technologies or safety programs (Pub. L. 114-94, 129 Stat. 1312, Dec. 4, 2012). Per section 5222, FMCSA may authorize qualified entities to monitor motor carriers that receive “Beyond Compliance” recognition (129 Stat. 1540).

To what extent, if any, should the various levels of automation be considered as part of the Beyond Compliance Program?

The regulation of CMVs is a function shared by the National Highway Traffic Safety Administration (NHTSA) and FMCSA, with manufacturing regulated by NHTSA and operation regulated by FMCSA (and its State partners). Does this separation of functions create unique problems, or perhaps offer unique solutions, for operators of ADS-equipped CMVs?

FMCSA acknowledges that companies may be reluctant to share certain proprietary data or information with the Agency, either as part of the waiver, exemption, or pilot program application process, or during the pendency of a regulatory relief period. The Agency notes that 49 CFR 389.3 provides protection for “confidential business information” which includes trade secrets or commercial or financial information that is privileged or confidential, as described in 5 U.S.C. 552(b)(4). Commercial or financial information is considered confidential if it is voluntarily submitted to the Agency and constitutes the type of information not customarily released to the general public. FMCSA has established standards and procedures by which the Agency will solicit, receive, and protect confidential information from public disclosure. The Agency is seeking information from interested parties on how it might further protect non-public information necessary to assess whether ADS-equipped CMVs meet performance standards and accurately document safety-related events during a waiver, temporary exemption, or pilot program.

What measures would original equipment manufacturers and developers expect of FMCSA before sharing confidential business information?

How might the Agency obtain information sufficient to assess the safety performance of CMVs with ADS without collecting confidential business information?

Do you have any additional comments regarding the confidentiality of shared information?