that the web-based services call IT development cost will average
approximately $56,500 per SDLA.
    AAMVA indicated it may incur costs for aligning the Clearinghouse
information with disqualification data that already exists in CDLIS.
FMCSA will work with AAMVA to determine the necessity and extent of
these costs, but for analysis purposes estimates that they would not be
greater than $200,000 for development, with an annual operations and
maintenance cost of $40,000. FMCSA will incur costs of approximately $1
million for development of a web-based services application and
approximately $200,000 for annual operations and maintenance costs in
years 2 through 10 of the analysis.
    In order to implement a web-based services call, FMCSA will develop
an interface between the Clearinghouse and the SDLAs. FMCSA envisions
that the interface would connect seamlessly to the existing State
interface so that when a State employee initiates the CDLIS driver
record check, the State system would simultaneously query the
Clearinghouse. FMCSA would provide the application programming
interface (API) code, or other technical specifications, and work with
the States to integrate the interface into their existing technology
platforms. In developing this interface, FMCSA would leverage the
current FMCSA web-based services calls, such as Query Central, to
reduce development costs wherever possible.
    SDLAs using this method will incur costs for initial modification
of their systems to interface with the Clearinghouse, and annual
operations and maintenance expenses. FMCSA expects that SDLAs' costs to
implement the interface specifications would vary based on the
characteristics of their individual IT systems. The Agency's IT staff
estimated a representative initial/upfront cost taking into account
that some States currently use a mainframe application and others use
an existing web interface. The initial development costs for each
method to interface with the Clearinghouse were estimated based on the
labor hours it would take a programmer to develop an application for
use in a mainframe environment and in a non-mainframe environment.
Developing a web interface in a mainframe environment is estimated to
take 1,080 hours. Developing a web interface in a non-mainframe
environment is estimated to take 360 hours. These hours were monetized
in 2019 dollars using the United States Department of Labor, Bureau of
Labor Statistics (BLS) $41.61 per hour median wage for a computer
programmer.\29\ The hourly wage is adjusted for a 73 percent fringe
benefit rate obtained the from the BLS June 2019 ``Employer Cost of
Employee Compensation News Release,'' \30\ and a 15.9 percent overhead
rate based on indirect cost rates provided by States in their 2020
CDLPI grant applications. The resulting labor cost is $78.53 per hour.
At that hourly rate, the cost for a programmer to develop an interface
in a non-mainframe environment is estimated at $28,271 (360 hours x
$78.53 per hour) and $84,812 (1,080 hours x $78.53 per hour) in a
mainframe environment. The average of these two cost estimates results
in an initial IT development of $56,500 per SDLA (rounded to the
nearest hundred).
---------------------------------------------------------------------------

    \29\ This hourly median wage is for the BLS-SOC 15-1251 computer
programmer. See https://www.bls.gov/oes/current/oes151251.htm
(accessed November 2, 2020).
    \30\ BLS, ``Employer Cost of Employee Compensation 4th Quarter
News Release,'' Table 4--employer Costs for Employee Compensation
for private industry workers by occupational and industry group,
available at https://www.bls.gov/news.release/archives/ecec_03192020.pdf (accessed Nov. 2, 2020). The fringe benefit rate
is the ratio of hourly wage for average hourly wage for a private
industry worker and the associated hourly benefit rate (73 percent =
$25.85/14).
---------------------------------------------------------------------------

    Because the Agency is allowing SDLAs to choose the method that
works best for their particular system and framework, FMCSA continues
to estimate initial IT development costs for SDLAs to be $200,000 per
SDLA, accounting for both CDLIS costs of likely just below $300,000 and
web-based services costs of less than $60,000. Multiplying this cost by
the number of SDLAs (51) results in a total of $10.2 million ($200,000
x 51) in SDLA initial/upfront development costs. This one-time cost
occurs in the first year of the 10-year analysis period.
    The Agency assumes that SDLAs' annual operations and maintenance
expenses would be equal to 20 percent of the upfront costs, or $40,000
($200,000 x 20 percent). Multiplying the operations and maintenance
expense rate by the number of SDLAs resulted in $2.04 million of annual
operations and maintenance expenses ($40,000 x 51 SDLAs). The Agency
assumes that SDLAs would incur operations and maintenance expenses
annually, beginning in the second year of the 10-year analysis period.
Operations and maintenance expenses over the 10-year analysis period
are estimated at $18.4 million ($2.04 million x 9 years). FMCSA
estimates that the total undiscounted IT development and operations and
maintenance expenses over the 10-year analysis period are $28.6 million
($10.2 million IT development costs + $18.4 million operations and
maintenance expenses).
    In response to comments from two States, FMCSA includes a recurring
cost to manage in-person and phone or email inquiries related to the
downgrade procedures. The States did not indicate how long it takes to
handle customer service inquiries, but FMCSA estimates that an average
of one hour per downgraded license is a conservative

estimate, and values this time at a loaded median hourly rate of $31.50
for customer service representatives.\31\ This results in an annual
cost of approximately $159,000 (5,045 downgraded licenses per year x 1
hour x $31.50).
---------------------------------------------------------------------------

    \31\ The hourly median wage for the BLS-SOC 43-4051 Customer
Service Representative is $16.69. FMCSA adjusts this wage rate using
the previously identified fringe benefits rate of 73 percent and the
overhead rate of 15.9 percent. See https://www.bls.gov/oes/current/oes151251.htm.
---------------------------------------------------------------------------

    In sum, FMCSA estimates 10-year total costs for SDLAs to be
approximately $30.1 million undiscounted. At a 7 percent discount rate,
the 10-year total cost is estimated at $23.1 million and the annualized
cost is estimated at $3.3 million. FMCSA notes that States can apply
for CDLPI grant program funding to offset the cost associated with IT
development and operations and maintenance.
    FMCSA will incur initial IT development costs of just over $1.0
million in 2019 dollars in the first year of the 10-year analysis
period. FMCSA would incur annual operations and maintenance expenses of
$203,000 ($1.02 million x 20 percent) beginning in the second year of
the 10-year analysis period. Over the remaining 9 years of the analysis
period, the Agency will incur $1.8 million of operations and
maintenance expenses ($203,000 x 9 years). The sum of initial IT
development costs and annual O&M expenses results in FMCSA incurring
total undiscounted costs of $2.8 million over the 10-year analysis
period ($1.0 million + $1.8 million). At a 7 percent discount rate, the
Agency is estimated to incur $2.2 million in IT development and
operations and maintenance expenses over the 10-year analysis period.
The annualized cost at a 7 percent discount rate is estimated at $0.3
million.
Driver Opportunity Cost and CLP/CDL Reinstatement Cost
    Under the final rule, a driver could incur an opportunity cost
equal to the income forgone between the time he or she is eligible to
resume operating a CMV (i.e., when an employer reports a negative RTD
test result to the Clearinghouse) and when the SDLA reinstates the
commercial privilege to the driver's license.
    The estimate of opportunity costs drivers may incur is a function
largely of the number of drivers that SAPs refer to outpatient
education programs versus intensive outpatient treatment (IOT)
programs. In the 2016 RIA, the Agency assumed an education program
would be completed in 16 hours and an IOT program would be completed in
108 hours over 12 weeks. The final rule requires SDLAs to record a
downgrade on the driver's CDLIS record within 60 days. If the driver
completes the RTD process before the SDLA records a downgrade in CDLIS,
the SDLA would be required to terminate the downgrade, consistent with
State law. A driver referred to a 16-hour education program by a SAP
may complete the RTD process before the SDLA records the downgrade in
CDLIS. In this case, a driver would be qualified to operate a CMV
without having to comply with State-established procedures to reinstate
the CMV driving privilege and would not incur opportunity costs.
    In the 2016 RIA, the Agency assumed that 75 percent of drivers who
violated the drug and alcohol program would be referred to a 16-hour
education program. The remaining drivers would be referred to a 108-
hour IOT program. In July 2018, the Substance Abuse and Mental Health
Service Administration (SAMHSA), published a report titled National
Survey of Substance Abuse Treatment Services (N-SSATS): 2017. Data on
Substance Abuse Treatment Facilities. SAMHSA reported that 82 percent
of individuals in outpatient programs participated in education
programs. The remaining 18 percent participated in IOT programs.\32\
FMCSA reviewed the 2018 SAMHSA survey report and found that the client
characteristics regarding outpatient program attendance were not
reported, and therefore the 2017 report provides the most recent
estimate of the percentage of individuals completing education
programs. The Clearinghouse, which has been operational since January
2020, accurately reports driver count information that informs the
percentage of drivers who complete RTD procedures within the 60-day
timeframe.\33\ However, this data was collected during the coronavirus
disease 2019 (COVID-19) pandemic, which has had significant short-term
impacts on the U.S. economy and labor market. While the long-term
impacts remain unclear, FMCSA does not think it prudent to estimate
costs over a 10-year period based on information collected during the
COVID-19 pandemic, which drastically affected employment, freight
rates, and even mental health and substance abuse prevalence. Further,
FMCSA did not receive comments regarding any inaccuracy of the SAMHSA
data and therefore continues to rely on it for the purposes of this
analysis.
---------------------------------------------------------------------------

    \32\ The report is available at https://www.samhsa.gov/data/report/national-survey-substance-abuse-treatment-services-n-ssats-2017-data-substance-abuse, Table 5-1a (accessed June 16, 2019).
    \33\ As of January 1, 2021, the Clearinghouse recorded just over
52,000 drivers with a drug or alcohol violation, of which more than
60% had not started the RTD process. Over 30% of drivers with a
violation had either started or completed RTD. While this data is
logically consistent with the assumptions in this analysis, FMCSA
cannot determine how the COVID pandemic affected either the total
number of violations or the RTD process and is not using
Clearinghouse data to inform impact estimates at this time.
---------------------------------------------------------------------------

    Based on the U.S. DOT's survey data for 2018, extrapolated to the
entire CDL population, FMCSA estimates that 62,279 drivers will test
positive and be required to complete the RTD process annually.\34\ The
2016 RIA estimated that 45 percent, or 28,026 of these drivers, will
complete the RTD process.\35\ Based on SAMHSA's survey, the Agency
estimates that 82 percent, or 22,981 of the 28,026 drivers, will
complete the RTD process before SDLAs record the downgrade and will not
incur opportunity costs.\36\ The remaining 5,045 drivers (28,026
drivers x 18 percent) presumably will be referred to an IOT program and
be required to comply with any reinstatement procedures established by
the State that could cause a driver to incur opportunity costs.
---------------------------------------------------------------------------

    \34\ U.S. DOT Agency MIS data. Available at: https://www.transportation.gov/odapc/DOT_Agency_MIS_Data. Accessed on
November 2, 2020.
    \35\ DOT FMCSA Commercial Driver's License Drug and Alcohol
Clearinghouse: Final Rulemaking Regulatory Impact Analysis. December
13, 2016. Available at: https://beta.regulations.gov/document/FMCSA-2011-0031-0183.
    \36\ FMCSA notes that, while States have 60 days to complete a
downgrade of the CLP/CDL, they may elect to record the downgrade
sooner, thereby reducing the time frame for drivers to complete the
RTD process requirements prior to the downgrade. If this occurs,
drivers referred to the 16-hour education program may be subject to
reinstatement procedures at the SDLA. FMCSA is unable to estimate
the likelihood or frequency of such an occurrence, and continues to
assume all drivers referred to a 16-hour education program will
complete the RTD process prior to the State recording the downgrade.
The Agency believes this is a reasonable assumption, particularly
given the increased incentive to quickly complete the RTD process
following the notification to drivers of an impending downgrade.
---------------------------------------------------------------------------

    Depending on the State, a driver may be required to appear in
person at the SDLA to complete the reinstatement process that could
require the driver to incur opportunity costs for the time to travel to
and from the SDLA. Some SDLAs allow the transaction to be completed by
email or through the SDLA website. For purposes of this analysis, the
Agency assumes that drivers will need to complete the transaction in
person, which may result in an overestimation of the cost to drivers.
The Agency assumes that it will take one day for a driver to travel to
an SDLA and complete the reinstatement

process. Thus, drivers will incur opportunity cost for time spent
traveling and out-of-pocket travel costs. The Agency's estimate of
driver opportunity costs and reinstatement costs is based on the
following assumptions:
    1. One day to travel to and from the SDLA and complete the
reinstatement process.
    2. 10 hours of lost wages.
    3. 5,045 drivers subject to mandatory downgrades.
    4. A representative driver wage of $31.00 per hour to estimate
income forgone.
    5. $0.575 per-mile cost for use of private vehicle.\37\
---------------------------------------------------------------------------

    \37\ The mileage rate is the General Services Administration
current reimbursement rate for use of private vehicles. The mileage
rate for private vehicle use is available at https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privately-owned-vehicle-pov-mileage-reimbursement-rates (accessed Oct. 29,
2020).
---------------------------------------------------------------------------

    6. 50 miles round-trip to the SDLA.
    Based on these assumptions, the upper bound of annual opportunity
costs for one day spent traveling to the SDLA and completing the
reinstatement process is estimated at $1.6 million ((10 hours x 5,045
drivers x $31 per hour) + (5,045 drivers x 50 miles x $0.575 per
mile)), and the 10-year total cost is estimated at $16.3 million. At a
7 percent discount rate, the 10-year cost is estimated at $11.5 million
and the annualized cost is estimated at $1.6 million.
    Drivers may also incur reinstatement costs attributed to SDLA
requirements for restoring the commercial privilege, such as payment of
a reinstatement fee, and partial or full retesting.\38\ The States have
established a broad spectrum of procedures for reinstatement of the
CLP/CDL privilege to the driver's license following a downgrade due to
invalid medical certification as required by Sec.  383.73(o)(4), and
the Agency expects that the States will adopt or modify existing
procedures when downgrading a CLP/CDL due to a drug or alcohol
violation. FMCSA reviewed current procedures used by the States for
drivers whose CLP or CDL has been downgraded for failure to maintain
their medical certification. The Agency is aware that about half of the
States require knowledge and/or skills retesting before removing a
downgrade. However, in these States, retesting is required only if a
driver is not able to present a new medical certificate before the
expiration of a prescribed grace period. None of these States has a
retesting grace period less than six months. In the 2016 RIA, the
Agency conservatively assumed that it would take a driver 12 weeks to
complete a 108-hour program based on one 9-hour session per week. Thus,
the Agency finds that drivers referred to IOT programs will complete
the IOT program and the RTD process without having to retest to have
the CLP or CDL privilege restored to their license. Therefore, FMCSA is
not estimating reinstatement costs or fee payments resulting from this
rule.
---------------------------------------------------------------------------

    \38\ A requirement to retake the knowledge and skills test would
cause the driver to forgo income during the 14-day waiting period
required before taking the skills test.
---------------------------------------------------------------------------

Motor Carrier Opportunity Costs
    Motor carrier opportunity costs are estimated because drivers
subject to reinstatement would not be eligible to resume safety-
sensitive functions, such as driving, until the SDLA restores the CLP
or CDL privilege to the driver's license. This represents a change from
current requirements in parts 382 and 40, which permit resumption of
safety-sensitive functions immediately following a negative RTD test
result. Thus, motor carriers may also incur opportunity costs based on
the profits forgone from the loss of productive driving hours between
the time the driver completes the RTD process and State reinstatement.
The Agency estimates that a motor carrier will lose 10 hours of
productive driving time while a driver completes the reinstatement
process. FMCSA bases this estimate on current processes the States
employ to reinstate a CLP or CDL privilege following a downgrade of the
driver's license due to invalid medical certification.
    In concert with the driver opportunity cost estimates, the Agency
estimates that motor carriers would lose 50,446 hours of productive
driving time each year (5,045 drivers x 10 hours) while drivers
complete the reinstatement process. Broadly speaking, the opportunity
cost to the motor carrier (the firm) of a given regulatory action is
the value of the best alternative that the firm must forgo in order to
comply with the regulatory action. In this analysis, FMCSA follows the
methodology used in the Entry-Level Driver Training rulemakings
published in 2016 \39\ and 2019 \40\ and values the change in time
spent in nonproductive activity as the opportunity cost to the firm,
which is represented by the now attainable profit, using three
variables: The marginal cost of operating a CMV, an estimate of a
typical average motor carrier profit margin, and the change in
nonproductive time.
---------------------------------------------------------------------------

    \39\ 81 FR 88732 (Dec. 8, 2016).
    \40\ 84 FR 10437 (Mar. 21, 2019).
---------------------------------------------------------------------------

    The American Transportation Research Institute (ATRI) report, An
Analysis of the Operational Costs of Trucking: 2019 Update, found that
marginal operating costs were $71.78 per hour in 2018.\41\ These
marginal costs include vehicle-based costs (e.g., fuel costs, insurance
premiums, etc.), and driver based costs (i.e., wages and benefits).
---------------------------------------------------------------------------

    \41\ ATRI. An Analysis of the Operational Costs of Trucking:
2019 Update. October 2019. Table 10, pg. 19. Available at: https://truckingresearch.org/wp-content/uploads/2019/11/ATRI-Operational-Costs-of-Trucking-2019-1.pdf (accessed April 19, 2021). Source data
are assumed to be presented in 2018 dollar terms.
---------------------------------------------------------------------------

    Next, the Agency estimated the profit margin for motor carriers.
Profit is a function of revenue and operating expenses, and ATA defines
the operating ratio of a motor carrier as a measure of profitability
based on operating expenses as a percentage of gross revenues.\42\
Armstrong & Associates, Inc. (2009) states that trucking companies that
cannot maintain a minimum operating ratio of 95 percent (calculated as
Operating Costs / Net Revenue) will not have sufficient profitability
to continue operations in the long run.\43\ Therefore, Armstrong &
Associates states that trucking companies need a minimum profit margin
of 5 percent of revenue to continue operating in the future. Transport
Topics publishes data on the ``Top 100'' for-hire carriers, ranked by
revenue.\44\ For 2014, 39 of these Top 100 carriers also had net income
information reported by Transport Topics. FMCSA estimates that the 39
carriers with both revenue and net income information have an average
profit margin of approximately 4.3 percent for 2014. For 2018, 33 of
these Top 100 carriers had net income information reported by Transport
Topics, with an average profit margin of approximately 6 percent for
2018.\45\ The higher profit margin experienced in 2018 is reinforced by
a Forbes article that found net profit margin for freight trucking
companies ``expanded to 6 percent in 2018, compared with an annual
average of between 2.5 percent and 4 percent each

year since 2012.'' \46\ In 2019, the data provided by Transport Topics
showed a similar pattern based on the 28 companies that provided net
income information, with an average profit margin of 5.8 percent.\47\
It is uncertain whether the recent surge in net profit margin will
continue through the analysis period, so FMCSA assumes the lower profit
margin of 5 percent for motor carriers for purposes of this analysis.
---------------------------------------------------------------------------

    \42\ ATA. American Trucking Trends 2015. Page 79.
    \43\ Armstrong & Associates, Inc. Carrier Procurement Insights.
2009. Pages 4-5. Available at: https://www.3plogistics.com/product/carrier-procurement-insights-trucking-company-volume-cost-and-pricing-tradeoffs-2009/ (accessed Jan. 5, 2016).
    \44\ Transport Topics. 2014. Top 100 For-Hire Carriers.
Available at: http://ttnews.com/top100/for-hire/2014 (accessed April
19, 2021).
    \45\ Transport Topics. 2018. Top 100 For-Hire Carriers.
Available at: https://www.ttnews.com/top100/for-hire/2018 (accessed
April 19, 2021).
    \46\ Forbes. Trucking Companies Hauling in Higher Sales.
Available at: https://www.forbes.com/sites/sageworks/2018/03/04/trucking-companies-hauling-in-higher-sales/#40e0012f3f27 (accessed
April 19, 2021).
    \47\ Transport Topics. 2019. Top 100 For-Hire Carriers.
Available at: https://www.ttnews.com/top100/for-hire/2019 (accessed
April 19, 2021).
---------------------------------------------------------------------------

    Using the assumed profit margin of 5 percent for motor carriers,
FMCSA estimates the revenue gained per hour for motor carriers by
multiplying the marginal cost per hour by the profit margin. This
calculation results in a profit per hour of $3.59.
    Based on the loss of 50,446 driving hours, the Agency estimates
motor carrier undiscounted opportunity costs at $1.8 million over the
10-year analysis period ($3.59 per hour x 50,446 hours x 10 years). The
annualized cost is estimated at $181,051. At a 7 percent discount rate,
motor carrier opportunity costs are estimated at $1.3 million over 10
years. The annualized cost is estimated at $181,051.
Summary of the Estimated Cost of the Proposed Rule
    Table 2 compares the total 10-year and annualized costs, both
undiscounted and at a 7 percent discount rate. FMCSA estimates the
total 10-year costs of this final rule at $51.7 million undiscounted,
and $38.5 million discounted at 7 percent. Expressed on an annualized
basis, this equates to $5.2 million undiscounted, and $5.5 million in
costs at a 7 percent discount rate.

                          Table 2--Total 10-Year and Annualized Cost of the Final Rule
----------------------------------------------------------------------------------------------------------------
                                                  Undiscounted  (2019 $ million)   Discounted at 7%  ($ million)
                                                ----------------------------------------------------------------
                 Cost category                    10-Year total                    10-Year total
                                                      cost          Annualized         cost         Annualized
----------------------------------------------------------------------------------------------------------------
SDLA Costs.....................................           $30.1            $3.0            $23.1            $3.3
AAMVA IT Cost..................................             0.6             0.1              0.4             0.1
Federal Government IT Cost.....................             2.8             0.3              2.2             0.3
Driver Opportunity Cost........................            16.4             1.6             11.5             1.6
Motor Carrier Opportunity Cost.................             1.8             0.2              1.3             0.2
                                                ----------------------------------------------------------------
    Total......................................            51.7             5.2             38.5             5.5
----------------------------------------------------------------------------------------------------------------

Benefits
    The 2016 Clearinghouse final rule required States to request
information from the Clearinghouse when processing specified licensing
transactions. This final rule builds on that requirement by prohibiting
SDLAs from issuing, renewing, upgrading, or transferring the CDL, or
issuing, renewing, or upgrading the CLP, of any driver prohibited from
operating a CMV due to drug and alcohol program violations. In
addition, the rule requires SDLAs to downgrade the driver licenses of
individuals prohibited from operating a CMV due to drug and alcohol
program violations. SDLAs will rely on applicable State law and
procedures to accomplish the downgrade and any subsequent reinstatement
of the CLP or CDL privilege. FMCSA believes these requirements will
improve highway safety by increasing the detection of CLP or CDL
holders not qualified to operate a CMV due to a drug or alcohol program
violation. The safety benefits attributable to the increased
distribution of information about the driver's prohibited status must
be viewed in the context of the current regulatory scheme, as explained
below.
    The current CMV driving prohibition has been largely self-enforcing
in that it relies on motor carrier employers to prevent non-compliant
drivers from operating. The Agency is aware, through motor carrier
compliance reviews, targeted investigations, and other forms of
retrospective compliance monitoring, that non-compliance with the
driving prohibition occurs. Non-compliant drivers evade detection
because, although subject to the driving prohibition, these drivers
continue to hold a valid CLP or CDL in 47 States and the District of
Columbia. Consequently, during a traffic stop or roadside inspection,
traffic safety enforcement officers had no way of knowing the driver is
not qualified to operate a CMV. The Clearinghouse changed that by
making the information available to highway safety enforcement officers
able to access the driver's operating status in real time at roadside
through FMCSA's electronic enforcement tools, thereby increasing the
detection of drivers not qualified to operate a CMV. MCSAP personnel
can immediately place these drivers out of service.
    The mandatory downgrade will further strengthen detection of
drivers not qualified to operate due to a drug and alcohol program
violation. The reason is that not all traffic safety enforcement
officers have reliable access to FMCSA's electronic enforcement tools
that, after the Clearinghouse became operational, made the driver's
prohibited status available at roadside. While the approximately 12,000
officers who are trained and certified under MCSAP have consistent
roadside access to a CMV driver's prohibited status, most of the
approximately 500,000 non-MCSAP enforcement officers do not.
Accordingly, if a driver subject to the prohibition holds a valid CLP
or CDL at the time of a traffic stop, non-MCSAP personnel do not have
access to the driver's prohibited operating status. However, all
traffic safety officers have access to the driver's license status; a
check of the license is conducted whenever there is a roadside
intervention. Therefore, a driver whose license is downgraded due to a
drug and alcohol program violation will be detected, through a routine
license check, as not qualified to operate a CMV. The downgrade, by
increasing the detection of individuals unlawfully driving a CMV, will
therefore improve public safety.
    Just as a driver's prohibited status is not currently available to
non-MCSAP officers, most SDLAs cannot currently

identify drivers who are subject to the prohibition. This rule will
address this information gap by making the driver's prohibited status
known to SDLAs at the time of a driver's requested licensing
transaction. Under this approach, if the SDLA's mandated Clearinghouse
query results in notice that the driver is subject to the CMV driving
prohibition in Sec.  382.501(a), the SDLA must not complete the
transaction, resulting in non-issuance. This requirement will
strengthen enforcement of the CMV prohibition by ensuring that these
drivers complete RTD requirements before obtaining, renewing,
transferring, or upgrading a CLP or CDL, as applicable.
    The Agency anticipates that, by ``raising the stakes'' of non-
compliance, the non-issuance and mandatory downgrade requirements will
increase compliance with the CMV driving prohibition. As a result,
FMCSA expects that some CLP and CDL holders will be deterred from the
misuse of drugs or alcohol, though the Agency is unable to estimate the
extent of deterrence.
    Finally, this rule permits the Agency to use its enforcement
resources more efficiently. Previously, FMCSA generally became aware
that a driver was operating a CMV in violation of Sec.  382.501(a)
during the course of a compliance review of a motor carrier, or through
a focused investigation of a carrier or service agent. The process for
imposing sanctions on a driver who tested positive for a controlled
substance, but continued to operate a CMV, is a lengthy one that
involves outreach to the driver to determine whether RTD requirements
have been met, issuance of a Notice of Violation, the driver's possible
request for a hearing (and potentially a subsequent request for
administrative review), and possible issuance of a Letter of
Disqualification (LOD) to the driver, based on Sec.  391.41(b)(12).\48\
FMCSA may then forward the LOD to the SDLA, requesting that the
driver's CDL be downgraded. Under current regulations, the SDLA is not
obligated to comply with that request. The downgrade requirement
obviates the need for this time-consuming and labor-intensive process,
thus enabling the Agency's enforcement resources to be deployed more
effectively.
---------------------------------------------------------------------------

    \48\ Section 391.41(b)(12) applies only to the use of controlled
substances; alcohol use, test refusals, and actual knowledge
violations are not a basis for disqualification under this
provision.
---------------------------------------------------------------------------

B. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.),
the Office of Information and Regulatory Affairs (OIRA) designated this
rule as not a ``major rule,'' as defined by 5 U.S.C. 804(2).\49\
---------------------------------------------------------------------------

    \49\ A ``major rule'' means any rule that the Administrator of
OIRA at OMB finds has resulted in or is likely to result in (a) an
annual effect on the economy of $100 million or more; (b) a major
increase in costs or prices for consumers, individual industries,
Federal agencies, State agencies, local government agencies, or
geographic regions; or (c) significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets (5 U.S.C.
804(2)).
---------------------------------------------------------------------------

C. Regulatory Flexibility Act (Small Entities)

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601, et
seq.), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal
agencies to consider the impact of their regulatory proposals on small
entities, analyze effective alternatives that minimize small entity
impacts, and make their analyses available for public comment.
Accordingly, DOT policy requires an analysis of the impact of all
regulations on small entities and mandates that agencies strive to
lessen any adverse effects on these entities. Consistent with SBREFA
and DOT policy, FMCSA conducted an initial regulatory flexibility
analysis (IRFA), published the analysis with the NPRM, and requested
comments. FMCSA subsequently reviewed the available information on the
number affected small entities and the impact of the rule on those
small entities and presents the analysis and certification below.
Affected Small Entities
    The term small entities means small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000. This rule will impact States, AAMVA, drivers,
motor carriers, and FMCSA. Under the standards of the RFA, as amended,
States are not small entities because they do not meet the definition
of a small entity in section 601 of the RFA. Specifically, States are
not small governmental jurisdictions under section 601(5) of the RFA,
both because State government is not among the various levels of
government listed in section 601(5), and because, even if this were the
case, no State, including the District of Columbia, has a population of
less than 50,000, which is the criterion to be a small governmental
jurisdiction under section 601(5) of the RFA.
    CLP and CDL holders are not considered small entities because they
do not meet the definition of a small entity in Section 601 of the RFA.
Specifically, these drivers are considered neither a small business
under Section 601(3) of the RFA nor a small organization under Section
601(4).
    Under the RFA, as amended, motor carriers may be considered small
entities based on the SBA-defined size standards used to classify
entities as small. SBA establishes separate standards for each
industry, as defined by the North American Industry Classification
System (NAICS).\50\ This rule could affect motor carriers in many
different industry sectors in addition to the Transportation and
Warehousing sector (NAICS sectors 48 and 49); for example, the
Construction sector (NAICS sector 23), the Manufacturing sector (NAICS
sectors 31, 32, and 33), and the Retail Trade sector (NAICS sectors 44
and 45). Industry groups within these sectors have size standards for
qualifying as small based on the number of employees (e.g., 500
employees), or on the amount of annual revenue (e.g., $27.5 million in
revenue). Not all entities within these industry sectors will be
impacted by this rule, and therefore FMCSA cannot determine the number
of small entities based on the SBA size standards. However, it is
plausible to estimate that if each affected driver worked for a
distinct motor carrier, a maximum of 5,045 motor carriers would be
impacted by this rule annually. The 2020 Pocket Guide to Large Truck
and Bus Statistics estimates that there were approximately 603,000
interstate motor carriers and intrastate hazardous materials motor
carriers in 2019.\51\ Therefore, this rule could impact a maximum of
0.84 percent of interstate motor carriers and intrastate hazardous
materials motor carriers. FMCSA does not consider 0.84 percent to be a
substantial number of small entities.
---------------------------------------------------------------------------

    \50\ Executive Office of the President, OMB. ``North American
Industry Classification System.'' 2017. Available at: https://www.census.gov/eos/www/naics/2017NAICS/2017_NAICS_Manual.pdf
(Accessed July 24, 2020).
    \51\ U.S. Department of Transportation, Federal Motor Carrier
Safety Administration. ``2020 Pocket Guide to Large Truck and Bus
Statistics'' October 2020. Available at: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-10/FMCSA%20Pocket%20Guide%202020-v8-FINAL-10-29-2020.pdf (accessed on October 30, 2020).
---------------------------------------------------------------------------

Impact
    Motor carriers may incur opportunity costs as a result of this rule
if a driver employed by a given motor carrier is

subject to reinstatement and is ineligible to resume safety-sensitive
functions, such as driving, until the SDLA restores the CLP or CDL
privilege to the driver's license. In order to determine if this impact
would be significant, FMCSA considers the impact as a percentage of
annual revenue and estimates the impact to be significant if it
surpasses one percent of revenue. For each affected driver, the motor
carrier will incur an opportunity cost of $36 ($3.59 x 10 hours). The
motor carrier would need to have annual revenue below $3,589 ($36 /
0.01) in order for this impact to reach the threshold of significance.
It is not possible to determine the maximum number of drivers that
would be affected at a given motor carrier in any one year. For
illustrative purposes, FMCSA depicts the impact if a motor carrier
employed 15 affected drivers. The annual opportunity cost would be $538
($3.59 x 10 hours x 15 drivers), and the motor carrier would need to
have annual revenues of $53,835 for the impact to be considered
significant. FMCSA considers it unlikely that a motor carrier would be
able to operate with such low revenues in light of the sizeable
expenses to own and maintain CMVs, and support employees. The impact of
this rule increases linearly with the number of affected drivers (i.e.,
for each affected driver, the impact increases by $36 per year), and as
such, FMCSA does not anticipate that this rule will result in a
significant impact on small motor carriers regardless of the number of
affected drivers per motor carrier.
    Therefore, I hereby certify that this rule will not have a
significant impact on a substantial number of small entities.

D. Assistance for Small Entities

    In accordance with section 213(a) of SBREFA, FMCSA wants to assist
small entities in understanding this final rule so they can better
evaluate its effects on themselves and participate in the rulemaking
initiative. If the final rule will affect your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please consult the
person listed under FOR FURTHER INFORMATION CONTACT.
    Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman (Office of the National
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness
Boards. The Ombudsman evaluates these actions annually and rates each
agency's responsiveness to small business. If you wish to comment on
actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247).
DOT has a policy regarding the rights of small entities to regulatory
enforcement fairness and an explicit policy against retaliation for
exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $168 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2019 levels) or more in any one year. Though this final rule would not
result in such an expenditure, the Agency does discuss the effects of
this rule elsewhere in this preamble.

F. Paperwork Reduction Act (Collection of Information)

    This final rule contains no new information collection requirements
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The
information collection requirements established in the 2016 final rule
were approved under OMB Control Number 2126-0057. Notwithstanding any
other provision of law, no person is required to respond to a
collection of information unless that collection displays a valid OMB
control number.

G. E.O. 13132 (Federalism)

    A rule has implications for federalism if, pursuant to Section 1(a)
of E.O. 13132, it has ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' FMCSA analyzed this final rule under that Order and
determined that it has implications for federalism. A summary of the
impact of federalism in this rule follows.
    MAP-21 (49 U.S.C. 31306a(l)(1) and (2)) expressly preempts State
laws and regulations pertaining to CDL holders who have violated drug
and alcohol program requirements that are inconsistent with Section
31306a or Federal regulations implementing Section 31306a. Section
31306a(l)(2) specifies that State-based requirements pertaining to the
reporting of violations of FMCSA's drug and alcohol use and testing
program are included within the scope of the preemption set forth in
subparagraph (1). MAP-21 excepts from preemption State laws and
regulations relating to an action taken on the CDL of a driver who
violates FMCSA's drug and alcohol program (49 U.S.C. 31306a(l)(3)). The
impact of these statutory provisions on the States is discussed in
Section V. as noted below.
    In addition, this final rule establishes minimum requirements for
the issuance of CLPs and CDLs by the States, consistent with the
Agency's authority under 49 U.S.C. 31308 and 31305(a). Though the
Agency's CDL regulations in 49 CFR parts 383 and 384 impact the States,
they do not directly preempt any State law or regulation. In order to
avoid having amounts withheld from their Highway Trust Fund
apportionment, States participating in the CDL program must
substantially comply with the requirements of 49 U.S.C. 31311(a), as
defined in 49 CFR 384.301, and must annually certify substantial
compliance as set forth in 49 CFR 384.305. States determined by FMCSA
to be in substantial non-compliance are subject to withholding of a
portion of the State's Highway Trust Fund apportionment in accordance
with 49 U.S.C. 31314 and 49 CFR 384.401.
    In accordance with section 6(c)(2) of E.O. 13132, the Agency's
federalism summary impact statement, set forth below, describes FMCSA's
prior consultation with State officials, summarizes their concerns and
the Agency's position supporting the need to issue the final rule, and
addresses the extent to which the concerns of State officials have been
met.
Federalism Summary Impact Statement
    In accordance with sections 4(e) and 6(c)(1) of E.O. 13132, FMCSA
consulted with the National Governors Association, the National
Conference of State Legislatures, and AAMVA early in the process of
developing this rule to gain insight into the federalism implications
of regulations implementing the MAP-21 requirements. The States'
representatives requested that the rule delineate the States' role and
responsibilities regarding the Clearinghouse, as well as the potential
cost implications for the States, as clearly as possible and in a
manner consistent with congressional intent. They also requested that
the preemptive effect of MAP-21 on existing State laws requiring the
reporting of FMCSA's drug and alcohol program violation to the

SDLA be specifically discussed, and that FMCSA allow States the time
they need to enact laws or regulations implementing Federal regulatory
requirements related to the Clearinghouse. AAMVA recommended that the
Agency disqualify drivers who commit drug or alcohol violations, which
would provide SDLAs a clear basis on which to take action on the
commercial license. Additionally, prior to issuance of the NPRM, the
Agency consulted directly with the SDLAs during FMCSA's CDL Roundtable,
a bimonthly forum convened to discuss regulatory developments.
Following publication of the NPRM, FMCSA presented an overview of the
proposal to SDLAs participating in AAMVA's CDLIS Working Group and
encouraged the States to submit comments to the rulemaking docket.
    Drivers who violate FMCSA's drug and alcohol program and continue
to operate a CMV despite the existing prohibition pose a significant
risk to public safety. The Agency believes the final rule is necessary
in order to mitigate that risk. By requiring States receiving MCSAP
grant funds to adopt the CMV driving prohibition, and requiring that
States, to avoid having Federal highway funds withheld under 49 U.S.C.
31314, deny certain commercial licensing transactions and remove the
commercial driving privileges of drivers prohibited from operating a
CMV due to drug and alcohol program violations, the final rule will
improve safety by keeping prohibited drivers off our Nation's highways.
    The final rule addresses the questions and concerns of the States,
as noted above, in Section II., subsections A. (Purpose and Summary of
the Regulatory Action), B. (Summary of Major Provisions), and C. (Costs
and Benefits); Section IV. (Legal Basis for the Rulemaking); Section
V., subsections A. (Purpose and Intent of State-Related Clearinghouse
Requirements), B. (AAMVA's Petition for Rulemaking), and C. (Impact of
MAP-21 on State Laws); Section VI., subsection B. (Comments and
Responses); Section XI., subsection A. (E.O. 12866 (Regulatory Planning
and Review), E.O. 13563 (Improving Regulation and Regulatory Review),
and DOT Regulatory Policies and Procedures); and in relevant portions
of the regulatory text.\52\
---------------------------------------------------------------------------

    \52\ For more detailed information regarding questions and
concerns raised about the extent and nature of the States' role in
the Clearinghouse, and the preemptive effect of MAP-21 on State-
based reporting requirements, see the NPRM (85 FR 23670), located in
docket FMCSA-2017-0330 accessible at www.regulations.gov.
---------------------------------------------------------------------------

H. Privacy

    Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, note following 5 U.S.C. 552a), requires the
Agency to conduct a Privacy Impact Assessment of a regulation that will
affect the privacy of individuals. The assessment considers impacts of
the rule on the privacy of information in an identifiable form and
related matters. The FMCSA Privacy Officer has evaluated the risks and
effects the rulemaking might have on collecting, storing, and sharing
personally identifiable information and has evaluated protections and
alternative information handling processes in developing the rule to
mitigate potential privacy risks. FMCSA preliminarily determined that
this rule would not require the collection of individual personally
identifiable information beyond that which is already required by the
Clearinghouse final rule.
    In addition, the Agency submitted a Privacy Threshold Assessment
analyzing the rulemaking and the specific process for collection of
personal information to the DOT, Office of the Secretary's Privacy
Office. The DOT Privacy Office has determined that this rulemaking does
not create privacy risk.
    The E-Government Act of 2002, Public Law 107-347, sec. 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a Privacy Impact Assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information because of this final
rule.

I. E.O. 13175 (Indian Tribal Governments)

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

J. National Environmental Policy Act of 1969

    FMCSA analyzed this rule pursuant to the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action
is categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph
(6)(t)(2). The categorical exclusion (CE) in paragraph (6)(t)(2) covers
regulations ensuring States comply with the Commercial Motor Vehicle
Act of 1986, by having the appropriate information technology systems
concerning the qualification and licensing of persons who apply for and
persons who are issued a CDL. The requirements in this rule are covered
by this CE, and this action does not have the potential to
significantly affect the quality of the environment.

List of Subjects

49 CFR Part 382

    Administrative practice and procedure, Alcohol abuse, Drug abuse,
Drug testing, Highway safety, Motor carriers, Penalties, Safety,
Transportation.

49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.

49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 392

    Alcohol abuse, Drug abuse, Highway safety, Motor carriers.

    For the reasons discussed in this preamble, FMCSA amends 49 CFR
parts 382, 383, 384, 390, and 392 as follows:

PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

0
1. The authority citation for part 382 is revised to read as follows:

    Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec.
32934 of Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.

0
2. Amend Sec.  382.503 by:
0
a. Revising the section heading;
0
b. Designating the text as paragraph (a); and
0
c. Adding paragraph (b).
    The revision and addition read as follows:

Sec.  382.503  Required evaluation and testing, reinstatement of
commercial driving privilege.

* * * * *
    (b) No driver whose commercial driving privilege has been removed
from the driver's license, pursuant to Sec.  382.501(a), shall drive a
commercial motor vehicle until the State Driver Licensing Agency
reinstates the CLP or CDL privilege to the driver's license.

0
3. Amend Sec.  382.717 by revising paragraph (a)(2)(i) to read as
follows:

Sec.  382.717  Procedures for correcting information in the database.

    (a) * * *
    (2) * * *
    (i) Petitioners may request that FMCSA add documentary evidence of
a non-conviction to an employer's report of actual knowledge that the
driver received a traffic citation for driving a commercial motor
vehicle while under the influence of alcohol or controlled substances
if the citation did not result in a conviction. For the purposes of
this section, conviction has the same meaning as used in 49 CFR part
383.
* * * * *

0
4. Amend Sec.  382.725 by revising paragraphs (a) and (b) to read as
follows:

Sec.  382.725  Access by State licensing authorities.

    (a)(1) Before November 18, 2024, in order to determine whether a
driver is qualified to operate a commercial motor vehicle, the chief
commercial driver's licensing official of a State may obtain the
driver's record from the Clearinghouse if the driver has applied for a
commercial driver's license or commercial learner's permit from that
State.
    (2) On or after November 18, 2024, in order to determine whether a
driver is qualified to operate a commercial motor vehicle, the chief
commercial driver's licensing official of a State must obtain the
driver's record from the Clearinghouse if the driver has applied for a
commercial driver's license or commercial learner's permit from that
State.
    (b) By applying for a commercial driver's license or a commercial
learner's permit, a driver is deemed to have consented to the release
of information from the Clearinghouse in accordance with this section.
* * * * *

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES

0
5. The authority citation for part 383 is revised to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs.
214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec.
1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of Pub. L.
109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141, 126
Stat. 405, 830; and 49 CFR 1.87.

0
6. Amend Sec.  383.5 by revising paragraph (4) of the definition of
``CDL downgrade'' to read as follows:

Sec.  383.5  Definitions.

* * * * *
    CDL downgrade * * *
    (4) A State removes the CLP or CDL privilege from the driver's
license.
* * * * *

0
7. Amend Sec.  383.73 by:
0
a. Adding paragraph (a)(3);
0
b. Revising paragraphs (b)(10), (c)(10), (d)(9), (e)(8), and (f)(4);
and
0
c. Adding paragraph (q).
    The additions and revisions read as follows:

Sec.  383.73  State procedures.

    (a) * * *
    (3) Beginning November 18, 2024, the State must request information
from the Drug and Alcohol Clearinghouse, and if, in response to the
request, the State receives notification that pursuant to Sec.
382.501(a) of this chapter the applicant is prohibited from operating a
commercial motor vehicle, the State must not issue, renew, or upgrade
the CLP. If the applicant currently holds a CLP issued by the State,
the State must also comply with the procedures set forth in paragraph
(q) of this section.
    (b) * * *
    (10) Beginning November 18, 2024, the State must request
information from the Drug and Alcohol Clearinghouse. If, in response to
that request, the State receives notification that pursuant to Sec.
382.501(a) of this chapter the applicant is prohibited from operating a
commercial motor vehicle, the State must not issue the CDL.
* * * * *
    (c) * * *
    (10) Beginning November 18, 2024, the State must request
information from the Drug and Alcohol Clearinghouse. If, in response to
that request, the State receives notification that pursuant to Sec.
382.501(a) of this chapter the applicant is prohibited from operating a
commercial motor vehicle, the State must not transfer the CDL.
    (d) * * *
    (9) Beginning November 18, 2024, the State must request information
from the Drug and Alcohol Clearinghouse. If, in response to that
request, the State receives notification that pursuant to Sec.
382.501(a) of this chapter the applicant is prohibited from operating a
commercial motor vehicle, the State must not renew the CDL or H
endorsement and must comply with the procedures set forth in paragraph
(q) of this section.
    (e) * * *
    (8) Beginning November 18, 2024, the State must request information
from the Drug and Alcohol Clearinghouse. If, in response to that
request, the State receives notification that pursuant to Sec.
382.501(a) of this chapter the applicant is prohibited from operating a
commercial motor vehicle, the State must not issue an upgrade of the
CDL and must comply with the procedures set forth in paragraph (q) of
this section.
* * * * *
    (f) * * *
    (4) Beginning November 18, 2024, the State must request information
from the Drug and Alcohol Clearinghouse. If, in response to that
request, the State receives notification that pursuant to Sec.
382.501(a) of this chapter the applicant is prohibited from operating a
commercial motor vehicle, the State must not issue, renew, transfer or
upgrade a non-domiciled CLP or CDL and must comply with the procedures
set forth in paragraph (q) of this section, as applicable.
* * * * *
    (q) Drug and Alcohol Clearinghouse. Beginning November 18, 2024,
the State must, upon receiving notification that pursuant to Sec.
382.501(a) of this chapter, the CLP or CDL holder is prohibited from
operating a commercial motor vehicle, initiate established State
procedures for downgrading the CLP or CDL. The downgrade must be
completed and recorded on the CDLIS driver record within 60 days of the
State's receipt of such notification.
    (1) Termination of downgrade process when the driver is no longer
prohibited. If, before the State completes and records the downgrade on
the CDLIS driver record, the State receives notification that pursuant
to Sec.  382.503(a) of this chapter the CLP or CDL holder is no longer
prohibited from operating a commercial motor vehicle, the State must,
if permitted by State law, terminate the downgrade process without
removing the CLP or CDL privilege from the driver's license.
    (2) Reinstatement after FMCSA notification that the driver is no
longer prohibited. If, after the State completes and records the
downgrade on the CDLIS driver record, FMCSA notifies the State that
pursuant to Sec.  382.503(a) of this chapter a driver is no longer
prohibited from operating a commercial motor vehicle, the State must
make the driver eligible for reinstatement of the

CLP or CDL privilege to the driver's license, if permitted by State
law.
    (3) Reinstatement after Clearinghouse error correction. If, after
the State completes and records the downgrade on the CDLIS driver
record, FMCSA notifies the State that the driver was erroneously
identified as prohibited from operating a commercial motor vehicle, the
State shall:
    (i) Reinstate the CLP or CDL privilege to the driver's license as
expeditiously as possible; and
    (ii) Expunge from the CDLIS driver record and, if applicable, the
motor vehicle record, as defined in Sec.  390.5T of this chapter, any
reference related to the driver's erroneous prohibited status.

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

0
8. The authority citation for part 384 is revised to read as follows:

    Authority: 49 U.S.C. 31136, 31301, et seq., and 31502; secs. 103
and 215 of Pub. L. 106-159, 113 Stat. 1748, 1753, 1767; sec. 32934
of Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524 of Pub. L. 114-94,
129 Stat. 1312, 1560; and 49 CFR 1.87.

0
9. Amend Sec.  384.225 by adding paragraph (a)(3) to read as follows:

Sec.  384.225  CDLIS driver recordkeeping.

    (a) * * *
    (3) The removal of the CLP or CDL privilege from the driver's
license in accordance with Sec.  383.73(q) of this chapter.
* * * * *

0
10. Revise Sec.  384.235 to read as follows:

Sec.  384.235  Commercial driver's license Drug and Alcohol
Clearinghouse.

    Beginning November 18, 2024, the State must:
    (a) Request information from the Drug and Alcohol Clearinghouse in
accordance with Sec.  383.73 of this chapter and comply with the
applicable provisions therein; and
    (b)(1) Comply with Sec.  383.73(q) of this chapter upon receiving
notification from FMCSA that, pursuant to Sec.  382.501(a) of this
chapter, the driver is prohibited from operating a commercial motor
vehicle; and
    (2) Comply with Sec.  383.73(q) of this chapter upon receiving
notification from FMCSA that, pursuant to Sec.  382.503(a) of this
chapter, the driver is no longer prohibited from operating a commercial
motor vehicle; or that FMCSA erroneously identified the driver as
prohibited from operating a commercial motor vehicle.

0
11. Amend Sec.  384.301 by adding paragraph (o) to read as follows:

Sec.  384.301  Substantial compliance--general requirements.

* * * * *
    (o) A State must come into substantial compliance with the
requirements of subpart B of this part and part 383 of this chapter in
effect as of November 8, 2021, as soon as practicable, but, unless
otherwise specifically provided in this part, not later than November
18, 2024.

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
12. The authority citation for part 390 continues to read as follows:

    Authority: 49 U.S.C. 504, 508, 31132, 31133, 31134, 31136,
31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108
Stat. 1673, 1677; secs. 212 and 217, Pub. L. 106-159, 113 Stat.
1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and
transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L.
109-59, 119 Stat. 1144, 1726, 1743; sec. 4136, Pub. L. 109-59, 119
Stat. 1144, 1745; secs. 32101(d) and 32934, Pub. L. 112-141, 126
Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; secs.
5403, 5518, and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1558,
1560; sec. 2, Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.

0
13. Amend Sec.  390.3 as follows:
0
a. Lift the suspension of the section;
0
b. Revise paragraph (f)(1); and
0
c. Suspend the section indefinitely.

Sec.  390.3  General applicability.

* * * * *
    (f) * * *
    (1) All school bus operations as defined in Sec.  390.5, except for
Sec. Sec.  391.15(e) and (f), 392.15, 392.80, and 392.82 of this
chapter;
* * * * *

0
14. Amend Sec.  390.3T by revising paragraph (f)(1) to read as follows:

Sec.  390.3T  General applicability.

* * * * *
    (f) * * *
    (1) All school bus operations as defined in Sec.  390.5T, except
for Sec. Sec.  391.15(e) and (f), 392.15, 392.80, and 392.82 of this
chapter;
* * * * *

PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES

0
15. The authority citation for part 392 is revised to read as follows:

    Authority: 49 U.S.C. 504, 13902, 31136, 31151, 31502; Section
112 of Pub. L. 103-311, 108 Stat. 1673, 1676 (1994), as amended by
sec. 32509 of Pub. L. 112-141, 126 Stat. 405-805 (2012); and 49 CFR
1.87.

0
16. Add Sec.  392.15 to read as follows:

Sec.  392.15  Prohibited driving status.

    No driver, who holds a commercial learner's permit or a commercial
driver's license, shall operate a commercial motor vehicle if
prohibited by Sec.  382.501(a) of this subchapter.

    Issued under authority delegated in 49 CFR 1.87.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-21928 Filed 10-6-21; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register: November 10, 2008 (Volume 73, Number 218)]
[Rules and Regulations]
[Page 66555-66559]
[DOCID:fr10no08-19]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2004-IL-0003; FRL-8730-4]

Approval and Promulgation of Air Quality Implementation Plans;
Illinois; CILCO (AmerenEnergy) Edwards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is responding to comments and taking final action on a
July 29, 2003, site-specific sulfur dioxide (SO2) State
Implementation Plan revision request for the Central Illinois Light
Company E.D. Edwards Generating Station, now known as AmerenEnergy
Resources Generating Company, Edwards Power Plant, in Peoria County,
Illinois. This request amends the facility's emission limits to allow a
higher SO2 emission limit for one of its boilers. To offset
this increase, the revised rule includes a group limit for the
facility's three boilers which is

lower than the individual boiler emission limits. The revised rule
retains the facility's existing cap on total SO2 emissions.
Illinois' July 29, 2003, submittal was identical to a State variance
which EPA had approved as a temporary revision on April 13, 2000. On
November 12, 2004, EPA approved the July 29, 2003, permanent rule
revision submittal as a direct final action. However, on December 13,
2004, EPA received an adverse comment on its approval. EPA withdrew the
direct final approval on January 11, 2005. As stated in the January 11,
2005, withdrawal, EPA is not establishing a second comment period on
this action.

DATES: This final rule is effective on December 10, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2004-IL-0003. All documents in the docket are listed on
the http://www.regulations.gov Web site. Although listed in the index,
some information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through http://www.regulations.gov or in hard copy at
the Environmental Protection Agency, Region 5, Air and Radiation
Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This
facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding Federal holidays. We recommend that you telephone Mary
Portanova, Environmental Engineer, at<PHONE_NUMBER> before visiting
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Mary Portanova, Environmental
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:

I. Background
II. What has changed in the Illinois SO2 SIP?
III. What comments did EPA receive, and how does EPA respond?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. Background

    On July 29, 2003, Illinois submitted a site-specific SO2
State Implementation Plan (SIP) revision request for the Central
Illinois Light Company, in Bartonville, Peoria County, Illinois (CILCO
Edwards). The facility is now known as AmerenEnergy Resources
Generating Company, Edwards Power Plant. The SIP revision request,
which amended CILCO (AmerenEnergy) Edwards' SO2 emission
limits, was identical to an earlier temporary SIP revision, which EPA
approved on April 13, 2000 (65 FR 19838). Therefore, on November 12,
2004 (69 FR 65378), EPA approved the July 29, 2003, permanent SIP
revision request as a direct final action. However, on December 13,
2004, EPA received adverse comments on the action. EPA withdrew the
direct final approval on January 11, 2005 (70 FR 1824). The adverse
comments and EPA's responses are given in section III below.

II. What has changed in the Illinois SO2 SIP?

    CILCO (AmerenEnergy) Edwards operates three boilers, numbered 1, 2,
and 3. Its SO2 emission limits are codified at 35 Illinois
Administrative Code (IAC) 214.561. Previously, the Illinois
SO2 SIP limited the emissions from Boilers 1 and 3 to 6.6
pounds of SO2 per million British Thermal Units (lb/MMBtu)
and Boiler 2's emissions to 1.8 lb/MMBtu (See 35 IAC 214.141). The July
29, 2003, SIP revision request incorporated rule changes which were
identical to the limits in the variance submitted on May 21, 1999, and
approved by EPA on April 13, 2000. The average SO2 emissions
from Boilers 1, 2, and 3, as a group, may not exceed 4.71 lb/MMBtu
actual heat input. The average SO2 emissions from any one
boiler may not exceed 6.6 lb/MMBtu actual heat input. CILCO
(AmerenEnergy) Edwards must determine compliance with these limits on a
daily basis using the SO2 methodology of the Phase II Acid
Rain program set forth in 40 CFR part 75. A plantwide SO2
emission limit for CILCO (AmerenEnergy) Edwards restricts Boilers 1, 2,
and 3, as a group, to 34,613 pounds SO2 per hour (lb/hr) on
a 24-hour average. Compliance with the plantwide limit must also be
determined on a daily basis using the Phase II Acid Rain methodology.

III. What comments did EPA receive, and how does EPA respond?

    EPA received one set of comments from Heart of Illinois Sierra
Club, dated December 13, 2004, which disagreed with EPA's direct final
action.
    Comment: The commenter cited that in 2004, the Environmental
Integrity Project ranked CILCO (AmerenEnergy) Edwards 47th in the
United States for SO2 emissions. The commenter also stated
that the CILCO (AmerenEnergy) Edwards facility ``emits approximately
13% of the state's SO2 emissions and lacks even rudimentary
pollution controls. The proposed emission rate of 4.71 lb/MMBtu
reflects the facility's refusal to install pollution controls and is at
least 4 times higher than the limits proposed for new coal-fired power
plants.''
    Response: EPA notes that the Environmental Integrity Project's
report from May 2004 does rank CILCO (AmerenEnergy) Edwards as 47th in
the nation by total tons per year of SO2. The report also
shows that the twelve power plants with the highest SO2
emissions in the United States emitted more than twice CILCO
(AmerenEnergy) Edwards' SO2 emissions, in tons per year.
Illinois' Annual Air Quality Report for 2003 (IEPA/BOA/04-019, August
2004) indicated that the State's total point source SO2
emissions for 2003 were 512,320.6 tons per year (tpy), and the total
SO2 emissions from external fuel combustion electric
generation sources were 348,602.0 tpy (Table C4). Total fuel combustion
SO2 emissions were estimated in the report as 414,050.0 tpy
(Table 8). CILCO (AmerenEnergy) Edwards' 55,035 tpy SO2 for
2003 would be 10.7%, 15.8%, and 13.3% of these totals, respectively.
EPA agrees that CILCO (AmerenEnergy) Edwards is a large facility with
significant SO2 emissions. Its boilers have control systems
for nitrogen oxides and particulate matter, but not for SO2.
As part of the variance in 1999, the Illinois Pollution Control Board
required CILCO (AmerenEnergy) Edwards to research and report on
techniques to control its SO2 emissions. CILCO
(AmerenEnergy) Edwards reported that installing flue gas
desulfurization systems to control SO2 would be both
economically and technically infeasible. The CILCO (AmerenEnergy)
Edwards facility does not have the necessary space available to install
them.
    The States prepare SIPs in order to maintain the ambient air
quality standards, pursuant to section 110 of the Clean Air Act (CAA).
In its review of State SO2 SIPs and SIP revision requests,
EPA generally does not prescribe specific control measures, nor does it
comment on the size of individual facilities. Rather, EPA requires that
the emission limits be clear, enforceable, and protective of the
National Ambient Air Quality Standards (NAAQS) for SO2. The
level of

emissions allowed for new coal-fired plants in Illinois is not
necessarily relevant to the emission limits of existing sources. Newer
facilities may be expected to be more efficient or better suited for
current control technology. Illinois may determine how best to manage
its emission regulations, as long as the NAAQS continue to be
maintained. In support of the 1999 variance, Illinois submitted air
quality modeling results which evaluated the highest ground-level
SO2 concentrations possible with CILCO (AmerenEnergy)
Edwards operating in compliance with the 1999 variance limits. This
modeling, which included the SO2 emissions from other nearby
sources and a background SO2 concentration value, showed
that CILCO (AmerenEnergy) Edwards did not cause or contribute to a
violation of the SO2 NAAQS. EPA believes that the State has
demonstrated that the CILCO (AmerenEnergy) Edwards rule revision will
maintain the NAAQS.
    Comment: The public was led to believe that the variance approved
in 2000 would be a temporary measure.
    Response: The 2000 action did in fact address a temporary measure.
The Illinois Pollution Control Board (IPCB) anticipated that the
company might ask for a permanent revision to its emission limits. The
variance required CILCO (AmerenEnergy) Edwards to research and consider
alternatives for complying with Phase II of the Acid Rain Program,
report back to the IPCB, and if necessary, apply by February 28, 2002,
for permanent SO2 emission limit changes. The April 13,
2000, Federal Register made note of this provision at 65 FR 19839. It
was not possible to inform the public of CILCO (AmerenEnergy) Edwards'
intentions, since they were unknown to EPA at the time. CILCO
(AmerenEnergy) Edwards might have reverted to its former limits,
applied for the 1999 variance to be made permanent in 2002, or applied
at any time for a different rule revision altogether.
    Comment: The timetable for review and available information is
inadequate. The commenter requested additional time for review and also
requested that EPA provide a public hearing to discuss the SIP revision
prior to acting on it.
    Response: Upon receipt of the adverse comments, EPA withdrew the
direct final action. The comment period was not extended. Thirty days
is the usual comment period for a SIP action. The November 12, 2004,
action was expected to be noncontroversial because it addressed a SIP
revision which was identical to the SIP rule variance which EPA
approved on April 13, 2000. There was a thirty day comment period for
the April 13, 2000, action as well, and no comments were received at
the time.
    In accordance with SIP procedures, the State of Illinois provided
an opportunity for a public hearing on this proposed action prior to
its adoption by the Illinois Pollution Control Board. The Notice of
Hearing for this petition was filed on August 21, 2002, and the public
hearing was held on October 11, 2002. Representatives from the Illinois
Environmental Protection Agency and CILCO (AmerenEnergy) Edwards gave
statements. No members of the public attended the hearing.
    Comment: EPA must complete the New Source Review investigation
prior to approving this SIP revision. EPA should not approve a variance
for a coal-fired power plant to skirt existing SO2 limits
for a facility that is under active investigation for a new source
review violation.
    Response: Ongoing New Source Review investigations are not
pertinent to the SIP approval process. It is not possible to anticipate
the final outcome of these investigations. Any effect on allowable
emissions or SIP rules will occur on a separate schedule. The courts
did not place restrictions on the facilities under investigation that
would have precluded SIP rulemaking actions; nor did the fact of such
an investigation occurring within EPA place such restrictions. Since
CILCO (AmerenEnergy) Edwards' proposed new limits were properly adopted
by the State and were shown through air quality modeling to protect the
SO2 NAAQS, they are Federally approvable.
    Comment: The modeling fails to include new sources which have been
built, permitted, or have applied for permits since 1999. The comment
named Indeck-Elwood, Peabody's Prairie State Generating Station,
Enviropower Franklin County Proposal, CornBelt Energy, the Dynegy
Baldwin expansion, Franklin Power, the Marion IGCC proposal, a new coal
plant in Springfield, Illinois, the Holcim Cement Plant in Missouri,
and the proposed Peabody Thoroughbred power plant in Kentucky as other
large SO2 sources that were not included in the CILCO
(AmerenEnergy) Edwards modeling.
    Response: Illinois' SIP emission inventory does not include sources
which are not yet operating. Several of the commenter's named sources
were not operating in 1998, when the CILCO (AmerenEnergy) Edwards
modeling was completed, and some have not begun operating to date. As
part of the Prevention of Significant Deterioration (PSD) permitting
process, new sources address the maintenance of the NAAQS with
dispersion modeling that includes neighboring sources. Such modeling
would address the combined impact of the new source and existing nearby
sources.
    Illinois' emission inventory for the CILCO (AmerenEnergy) Edwards
rule included large SO2 sources within 50 kilometers (km) of
CILCO (AmerenEnergy) Edwards. The Industrial Source Complex Short Term
model (ISCST3), EPA's recommended regulatory dispersion model in 1998,
is not considered appropriate for use beyond a 50 km distance. All of
the facilities named by the commenter are beyond 100 km from CILCO
(AmerenEnergy) Edwards. A background SO2 concentration,
determined by actual monitored air quality data, was added to the
modeled concentrations in a NAAQS analysis to represent the impacts of
sources too distant to explicitly include in the modeling study.
    Comment: CILCO (AmerenEnergy) Edwards must conduct SO2
modeling that considers whether there are 24-hour or other
SO2 NAAQS violations, and whether there is any impact of
CILCO (AmerenEnergy) Edwards on the Mingo National Wildlife Refuge or
any other Class I area.
    Response: CILCO (AmerenEnergy) Edwards conducted air quality
modeling to address the impacts of the variance in 1998. The 1998
modeling addressed all three averaging times for the SO2
NAAQS (3 hour, 24 hour, and annual). No violations were found. The
Mingo National Wildlife Refuge and the next nearest Class I area,
Mammoth Cave National Park, are both over 300 km from CILCO
(AmerenEnergy) Edwards. As stated before, the ISCST3 model is not
considered appropriate for such distances. CILCO (AmerenEnergy)
Edwards' SIP revision request was submitted in 2002, and at that time,
EPA did not require Class I area analyses when the source was more than
100 km from a Class I area. Some current models can evaluate long-range
transport beyond 100 km, but CILCO (AmerenEnergy) Edwards' distance
from Class I areas and the emission change represented by the 1999
variance do not indicate a need for additional long-range transport
modeling.
    Comment: EPA must consider CILCO (AmerenEnergy) Edwards' impact on
PM2.5 and 8-hour ozone NAAQS.
    Response: The SO2 SIP revision for CILCO (AmerenEnergy)
Edwards retains the facility's 34,613 lb/hr overall SO2
emissions cap and does not provide for an increase in PM2.5
precursor emissions. The SIP revision does not provide for increases in
ozone precursors. The States are required to

submit attainment plans for areas designated nonattainment for
particulate matter less than 2.5 microns in diameter (PM2.5)
and ozone on an 8-hour average. These plans are being prepared
separately under statutory schedules. Where appropriate, CILCO
(AmerenEnergy) Edwards' emissions will be included in the analyses and
control strategies. These ongoing actions do not affect the ability of
CILCO (AmerenEnergy) Edwards to demonstrate that its SO2
limits address the NAAQS for SO2. If further revisions to
CILCO (AmerenEnergy) Edwards' SO2 limits are necessary as
part of the PM2.5 or ozone SIPs, Illinois must submit such
revisions for Federal approval as they are developed.
    Comment: EPA has not complied with the Endangered Species Act
(ESA). Federal agencies are required to review their actions ``to
insure that any action authorized, funded, or carried out by such
agency * * * is not likely to jeopardize the continued existence of any
endangered species * * * .'' See Sec. 7(a)(2) of the Endangered Species
Act.
    Response: EPA disagrees with the commenter. Under relevant CAA
provisions, States are entitled to administer their own plans for the
implementation, maintenance, and enforcement of the national primary
and secondary ambient air quality standards. 42 U.S.C. 7410. EPA is
required to approve a State's revision to its SIP that meets all
applicable CAA requirements. 42 U.S.C. 7410(k)(3). Illinois' proposed
SIP revision for CILCO (AmerenEnergy) Edwards satisfies the conditions
of section 110(l) of the CAA, the applicable CAA requirement.
Accordingly, and as confirmed by recent Supreme Court precedent, the
ESA requirements cited in the comments do not apply to EPA's decision
to approve Illinois' SIP revision for CILCO (AmerenEnergy) Edwards. See
50 CFR 402.03; National Ass'n of Home Builders v. Defenders of
Wildlife, 127 S. Ct. 2518 (2007) (Defenders of Wildlife).
    Section 7(a)(2) of the ESA generally requires Federal agencies to
consult with the relevant Federal wildlife agencies to ensure that
actions they authorize, fund, or carry out are not likely to jeopardize
the continued existence of Federally-listed endangered or threatened
species, or result in the destruction or adverse modification of
designated critical habitat of such species. 16 U.S.C. 1536(a)(2). In
accordance with relevant ESA implementing regulations, this requirement
applies only to actions in which there is discretionary Federal
involvement or control. 50 CFR 402.03. In National Ass'n of Home
Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007) (Defenders of
Wildlife), the Supreme Court examined these provisions in the context
of EPA's decision to approve a State permitting program under the Clean
Water Act (CWA). In that case, the Court held that when a Federal
agency is required by statute to undertake a particular action once
certain specified triggering events have occurred, there is no relevant
agency discretion, and thus the requirements of ESA section 7(a)(2) do
not apply. 127 S. Ct. at 2536.
    With regard to EPA's transfer of CWA permitting authority to a
State, the Court found that the relevant CWA provision mandated that
EPA ``shall approve'' a State permitting program if a list of CWA
statutory criteria are met. Therefore, EPA lacked the discretion to
deny a transfer application that satisfied those criteria. Id. at 2531-
32. The Court also found that the relevant CWA program approval
criteria did not include consideration of endangered or threatened
species, and stated that ``[n]othing in the text of [the relevant CWA
provision] authorizes EPA to consider the protection of threatened or
endangered species as an end in itself when evaluating [an]
application'' to transfer a permitting program to a State. Id. at 2537.
Accordingly, the Court held that the CWA required EPA to approve the
State's permitting program if the statutory criteria were met; those
criteria did not include the consideration of ESA-protected species;
and thus, consistent with 50 CFR 402.03, the non-discretionary action
to transfer CWA permitting authority to the State did not trigger
relevant ESA section 7 requirements.
    Similar to the CWA program approval provision at issue in Defenders
of Wildlife, section 110(k)(3) of the CAA mandates that EPA ``shall
approve'' a SIP submittal that meets applicable CAA requirements. 42
U.S.C. 7410(k)(3). With respect to SIP revisions such as Illinois'
requested revision, section 110(l) of the CAA provides the relevant
applicable CAA requirements and prohibits the Administrator from
approving a SIP revision that ``would interfere with any applicable
requirement concerning attainment and reasonable further progress * *
*, or any other applicable requirement'' of the CAA. 42 U.S.C. 7410(l).
    As was the case with the CWA requirements in Defenders of Wildlife,
the SIP requirements contained in section 110 of the CAA do not include
protection of listed species, and section 110(l) of the CAA does not
state that consideration of impacts on listed species is a factor to
consider in approving SIP revisions. EPA's action on State SIP
submittals is governed by section 110 of the CAA, which unequivocally
directs EPA to approve State plans meeting applicable CAA requirements.
    EPA recognizes that it exercises some judgment when evaluating
whether a SIP submittal meets specific statutory criteria. However, as
the Supreme Court held in Defenders of Wildlife, the use of such
judgment does not allow the Agency ``the discretion to add another
entirely separate prerequisite''--such as the ESA section 7(a)(2)
consultation requirements--to the list of required criteria EPA
considers when determining whether it ``shall approve'' a SIP revision
request. 127 S. Ct. at 2537.
    Applying the reasoning of Defenders of Wildlife, the SIP approval
criteria contained in the CAA do not provide EPA with the discretionary
authority to consider whether approval of SIP revisions may affect any
listed species. EPA has determined that Illinois has submitted a SIP
revision request for CILCO (AmerenEnergy) Edwards that satisfies all of
the applicable SIP requirements contained in section 110 of the CAA.\1\
Thus, given the Supreme Court precedent and applicable regulations--see
50 CFR 402.03--EPA is without discretion to disapprove or condition the
State's SIP revision request based on considerations regarding listed
species, and the ESA requirements cited by the commenter are thus
inapplicable to this approval action.
---------------------------------------------------------------------------

    \1\ On the basis of modeling demonstrating a worst-case
allowable emissions scenario under the requested revision, EPA has
determined that the CILCO (AmerenEnergy) Edwards SIP revision will
not interfere with any applicable requirement concerning attainment
and reasonable further progress. Nor will it cause or contribute to
exceedances of the National Ambient Air Quality Standards in other
States. Therefore, the revision has met all applicable requirements
under the CAA.
---------------------------------------------------------------------------

    Comment: Approving a permanent variance appears to be illegal
backsliding under CAA section 110, because the proposed rule would
relax the clean air safeguards contained in the existing SIP.
    Response: EPA disagrees. This SIP revision has been shown to
maintain the SO2 NAAQS under worst-case operating
conditions. Therefore, it does not violate 110(l). Sections 110(l) and
110(n)(1) allow States to revise their SIPs and submit them to the EPA
for review and approval.

IV. What Action Is EPA Taking?

    EPA is approving a July 29, 2003, site-specific request to revise
Illinois' SO2

SIP for the Central Illinois Light Company E.D. Edwards Generating
Station, now known as AmerenEnergy Resources Generating Company,
Edwards Power Plant, in Bartonville, Peoria County, Illinois. The
requested revision changes the SO2 emission limits for the
plant's three boilers.

V. Statutory and Executive Order Reviews.

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the CAA. Accordingly,
this action merely approves State law as meeting Federal requirements
and does not impose additional requirements beyond those imposed by
State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 9, 2009. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur oxides.

    Dated: October 2, 2008.
Lynn Buhl,
Regional Administrator, Region 5.

0
For the reasons stated in the preamble, part 52, chapter I, of title 40
of the Code of Federal Regulations is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart O--Illinois

0
2. Section 52.720 is amended by adding paragraph (c)(171) to read as
follows:

Sec.  52.720  Identification of plan.

* * * * *
    (c) * * *
    (171) On July 29, 2003, the Illinois Environmental Protection
Agency submitted a site-specific revision to the State Implementation
Plan (SIP) for sulfur dioxide (SO2) for the Central Illinois
Light Company's E.D. Edwards Generating Station, now known as
AmerenEnergy Resources Generating Company, Edwards Power Plant, in
Bartonville, Peoria County, Illinois.
    (i) Incorporation by reference.
    Illinois Administrative Code Title 35: Environmental Protection,
Subtitle B: Air Pollution, Chapter 1: Pollution Control Board,
Subchapter c: Emissions Standards and Limitations for Stationary
Sources, Part 214: Sulfur Limitations, Subpart X: Utilities Section
214.561 E.D. Edwards Electric Generating Station which was amended at
27 Illinois Register 12101, effective July 11, 2003.

[FR Doc. E8-26492 Filed 11-7-08; 8:45 am]

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[Federal Register Volume 78, Number 142 (Wednesday, July 24, 2013)]
[Notices]
[Pages 44574-44575]
[FR Doc No: 2013-17769]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2013-N-0001]

Third Annual Food and Drug Administration Health Professional
Organizations Conference

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of conference.

-----------------------------------------------------------------------

    The Food and Drug Administration (FDA) is announcing a conference
for representatives of Health Professional Organizations. Topics on the
agenda include FDA Updates, an overview of FDA's Network of Experts
(public/private partnerships), and a FDA Town Hall. The FDA Town Hall
will feature FDA senior executives including Jeffrey Shuren, M.D.,
J.D., Director of the Center for Devices and Radiological Health;
Douglas C. Throckmorton, M.D., Deputy Director for Regulatory Programs
of the Center for Drug Evaluation and Research; and Michael R. Taylor,
Deputy Commissioner for Foods and Veterinary Medicine.
    Date and Time: The conference will be held on October 24, 2013,
from 8 a.m. to 12 noon.
    Location: The conference will be held at the White Oak Campus,
10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room
(Rm. 1503), Silver Spring, MD 20993-0002. Entrance for the public
meeting participants (non-FDA employees) is through Building 1 where
routine security check procedures will be performed. For parking and
security information, please refer to http://www.fda.gov/AboutFDA/WorkingatFDA/BuildingsandFacilities/WhiteOakCampusInformation/ucm241740.htm.
    Contact: Brenda Rose, Office of Special Health Issues, 10903 New
Hampshire Ave., Silver Spring, MD 20993<EMAIL_ADDRESS>301-
796-8460.
    Registration: Register at http://www.cvent.com/d/hcqym9/1Q. Please
include the name and title of the person attending, the name of the
organization, and email address. There is no registration fee for this
conference. Early registration is suggested because space is limited.

SUPPLEMENTARY INFORMATION: The aim of the conference is to further the
public health mission of the FDA through training, collaboration, and
structured discussion between health professional organizations and FDA
staff. The Office of Health and Constituent Affairs serves as a liaison
between the FDA Centers and the public on matters that involve medical
product safety.
    Please indicate during your registration a question of greatest
interest to you for the FDA Town Hall.
    If you need special accommodations due to a disability, please
contact Brenda Rose at<EMAIL_ADDRESS>at least 7 days in
advance of the conference.

    Dated: July 19, 2013.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2013-17769 Filed 7-23-13; 8:45 am]
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