[Federal Register Volume 87, Number 9 (Thursday, January 13, 2022)]
[Notices]
[Pages 2237-2238]
[FR Doc No: 2022-00449]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

Hazardous Materials: Notice of Applications for New Special
Permits

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: List of applications for special permits.

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SUMMARY: In accordance with the procedures governing the application
for, and the processing of, special permits from the Department of
Transportation's Hazardous Material Regulations, notice is hereby given
that the Office of Hazardous Materials Safety has received the
application described herein.

DATES: Comments must be received on or before February 14, 2022.

ADDRESSES: Record Center, Pipeline and Hazardous Materials Safety
Administration U.S. Department of Transportation Washington, DC 20590.
    Comments should refer to the application number and be submitted in
triplicate. If confirmation of receipt of comments is desired, include
a self-addressed stamped postcard showing the special permit number.

FOR FURTHER INFORMATION CONTACT: Donald Burger, Chief, Office of
Hazardous Materials Safety General Approvals and Permits Branch,
Pipeline and Hazardous Materials Safety Administration, U.S. Department
of Transportation, East Building, PHH-13, 1200 New Jersey Avenue
Southeast, Washington, DC 20590-0001,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Each mode of transportation for which a
particular special permit is requested is indicated by a number in the
``Nature of Application'' portion of the table below as follows: 1--
Motor vehicle, 2--Rail freight, 3--Cargo vessel, 4--Cargo aircraft
only, 5--Passenger-carrying aircraft.
    Copies of the applications are available for inspection in the
Records Center, East Building, PHH-13, 1200 New Jersey Avenue
Southeast, Washington, DC.
    This notice of receipt of applications for special permit is
published in accordance with part 107 of the Federal hazardous
materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).

    Issued in Washington, DC, on January 7, 2022.
Donald P. Burger,
Chief, General Approvals and Permits Branch.

                                              Special Permits Data
----------------------------------------------------------------------------------------------------------------
                                                                                Nature of the special permits
       Application No.                 Applicant          Regulation(s) affected              thereof
----------------------------------------------------------------------------------------------------------------
21315-N......................  Umbra Lab, Inc..........  173.185(e)..............  To authorize the
                                                                                transportation in commerce
                                                                                of prototype lithium
                                                                                batteries contained in
                                                                                equipment by motor vehicle.
                                                                                (mode 1).
21316-N......................  Cryoconcepts, LP........  171.2(k), 172.200,        To authorize the
                                                          172.300, 172.400,         transportation in commerce
                                                          172.700(a).               of DOT 3AL cylinders
                                                                                containing carbon dioxide
                                                                                using alternative hazard
                                                                                communication. Additionally,
                                                                                the application requests
                                                                                authorization for cylinders
                                                                                charged to a pressure of
                                                                                less than 29.0 psig to be
                                                                                shipped as a hazardous
                                                                                material. (modes 1, 2, 3).
21317-N......................  Spaceflight, Inc........  173.185(e)(3)...........  To authorize the
                                                                                transportation in commerce
                                                                                of satellites containing
                                                                                prototype or low production
                                                                                lithium batteries in
                                                                                alternative packaging by
                                                                                motor vehicle. (mode 1).

21318-N......................  Mercedes-Benz Ag........  172.101(j),               To authorize the
                                                          173.185(b)(1).            transportation in commerce
                                                                                of lithium batteries
                                                                                exceeding 35 kg by cargo-
                                                                                only aircraft. (mode 4).
21320-N......................  Amazon.com, Inc.........  173.220(d), 173.156(a),   To authorize the
                                                          173.159a(c), 173.185(c).  transportation in commerce
                                                                                of small lithium batteries,
                                                                                non-spillable batteries, and
                                                                                battery powered vehicles in
                                                                                alternative packaging
                                                                                (shrink-wrapped overpacks).
                                                                                (modes 1, 2).
21321-N......................  Jaco, Inc...............  172.200, 172.700(a).....  To authorize the manufacture,
                                                                                mark, sale, and use of
                                                                                packagings for lithium
                                                                                batteries without requiring
                                                                                shipping papers, emergency
                                                                                response information and
                                                                                dangerous goods awareness
                                                                                training. (modes 1, 2, 3).
21322-N......................  Federal Express           175.75(c), 175.75(d)....  To authorize the
                                Corporation.                                        transportation in commerce
                                                                                of certain hazardous
                                                                                materials with relief from
                                                                                the quantity limitations and
                                                                                cargo location requirements
                                                                                under 49 CFR 175.75 (c) and
                                                                                (d). (mode 4).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2022-00449 Filed 1-12-22; 8:45 am]
BILLING CODE 4909-60-P


[Federal Register Volume 81, Number 105 (Wednesday, June 1, 2016)]
[Proposed Rules]
[Pages 34935-34940]
[FR Doc No: 2016-12804]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2015-0042; FRL-9947-09-Region 8]

Approval and Promulgation of Air Quality Implementation Plans;
State of Colorado; Second Ten-Year PM10 Maintenance Plan for Lamar

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions submitted by the
State of Colorado. On May 13, 2013, the Governor of Colorado's designee
submitted to the EPA a revised maintenance plan for the Lamar area for
the National Ambient Air Quality Standards (NAAQS) for particulate
matter with an aerodynamic diameter less than or equal to 10 microns
(PM10). EPA is proposing to approve the revised maintenance
plan with the exception of one aspect of the plan's contingency
measures.

DATES: Written comments must be received on or before July 1, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2015-0042 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.,) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: James Hou, Air Program, U.S.
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop
Street, Denver, Colorado 80202-1129,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
II. Background
III. What was the State's process?
IV. EPA's Evaluation of the Revised Lamar PM10
Maintenance Plan
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. General Information

What should I consider as I prepare my comments for EPA?

    1. Submitting Confidential Business Information (CBI). Do not
submit CBI to EPA through http://www.regulations.gov or email. Clearly
mark the part or all of the information that you claim to be CBI. For
CBI information on a disk or CD ROM that you mail to the EPA, mark the
outside of the disk or CD ROM as CBI and then identify electronically
within the disk or CD ROM the specific information that is claimed as
CBI. In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register volume,
date, and page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your
requested changes;
     Describe any assumptions and provide any technical
information and/or data that you used;
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced;
     Provide specific examples to illustrate your concerns, and
suggest alternatives;
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats; and,
     Make sure to submit your comments by the comment period
deadline identified.

II. Background

    The Lamar area was designated nonattainment for PM10 and
classified as moderate by operation of law upon enactment of the CAA
Amendments of 1990. See 56 FR 56694, 56705, 56736 (November 6, 1991).
EPA approved Colorado's nonattainment area SIP for the Lamar
PM10 nonattainment area on June 9, 1994 (59 FR 29732).
    On July 31, 2002, the Governor of Colorado submitted a request to
EPA to redesignate the Lamar moderate PM10 nonattainment
area to attainment for the 1987 PM10 NAAQS. Along with this
request, the State submitted a maintenance plan, which demonstrated
that the area was expected to remain in attainment of the
PM10 NAAQS through 2015. EPA approved the Lamar maintenance
plan and redesignation to attainment on October 25, 2005 (70 FR 61563).
    Eight years after an area is redesignated to attainment, the CAA
section 175A(b) requires the state to submit a subsequent maintenance
plan to the EPA, covering a second 10-year period.\1\ This second 10-
year maintenance plan must demonstrate continued maintenance of the
applicable NAAQS during this second 10-year period. To fulfill this
requirement of the Act, the Governor of Colorado's designee submitted
the second 10-year update of the PM10 maintenance plan to
the EPA on May 13, 2013 (hereafter, ``revised Lamar PM10
Maintenance Plan'').
---------------------------------------------------------------------------

    \1\ In this case, the initial maintenance period described in
CAA section 175A(a) was required to extend for at least 10 years
after the redesignation to attainment, which was effective on
November 25, 2005. See 70 FR 61563. Therefore, the first maintenance
plan was required to show maintenance through 2015. CAA section
175A(b) requires that the second 10-year maintenance plan maintain
the NAAQS for ``10 years after the expiration of the 10-year period
referred to in [section 175A(a)].'' Thus, for the Lamar area, the
second 10-year period ends in 2025.
---------------------------------------------------------------------------

    As described in 40 CFR 50.6, the level of the national primary and
secondary 24-hour ambient air quality standards for PM10 is
150 micrograms per cubic meter ([mu]g/m\3\). An area attains the 24-
hour PM10 standard when the expected number of days per
calendar year with a 24-hour concentration in excess of the standard
(referred to herein as

``exceedance''), as determined in accordance with 40 CFR part 50,
appendix K, is equal to or less than one, averaged over a three-year
period.\2\ See 40 CFR 50.6 and 40 CFR part 50, appendix K.
---------------------------------------------------------------------------

    \2\ An exceedance is defined as a daily value that is above the
level of the 24-hour standard, 150 [mu]g/m\3\, after rounding to the
nearest 10 [mu]g/m\3\ (i.e., values ending in five or greater are to
be rounded up). Thus, a recorded value of 154 [mu]g/m\3\ would not
be an exceedance since it would be rounded to 150 [mu]g/m\3\;
whereas, a recorded value of 155 [mu]g/m\3\ would be an exceedance
since it would be rounded to 160 [mu]g/m\3\. See 40 CFR part 50,
appendix K, section 1.0.
---------------------------------------------------------------------------

    Table 1 below shows the maximum monitored 24-hour PM10
values for the Lamar PM10 maintenance area for 2001 through
2015, excluding 34 values the State flagged as being caused by
exceptional events. The table reflects that most of the values for the
Lamar area were below the PM10 NAAQS of 150 [mu]g/m\3\. In
2008 the area experienced an exceedance measured at 367 [mu]g/m\3\; in
2009 exceedances measured at 233 [mu]g/m\3\ and 171 [mu]g/m\3\; and in
2015 an exceedance measured at 423[mu]g/m\3\. Notably, the 2015
exceedance was flagged as an exceptional event due to natural high
winds, but concurrence was not requested by Colorado at the time of
this proposal. This exceedance did not cause a violation of the
PM10 NAAQS.

                                   Table 1--Lamar PM10 Maximum 24-Hour Values
 [Based on data from power plant and municipal complex sites, AQS identification number 08-099-0001 and 08-099-
                                                      0002]
----------------------------------------------------------------------------------------------------------------
                                                   Maximum         2nd maximum
                    Year                        concentration     concentration           Monitoring site
                                                ([mu]g/m\3\)      ([mu]g/m\3\)
----------------------------------------------------------------------------------------------------------------
2001........................................               133               111  Power Plant.
2002........................................               141               125  Power Plant.
2003........................................               132               120  Power Plant.
2004........................................                93                82  Municipal Complex.
2005........................................               116               110  Power Plant.
2006........................................               136               127  Power Plant
2007........................................                93                82  Power Plant.
2008........................................               367               123  Power Plant.
2009........................................               233               171  Power Plant.
2010........................................               136               131  Power Plant.
2011........................................               122               115  Municipal Complex.
2012........................................               147               133  Power Plant.
2013........................................               147               141  Municipal Complex.
2014........................................               129               102  Municipal Complex.
2015........................................               423                94  Municipal Complex.
----------------------------------------------------------------------------------------------------------------

    40 CFR 50.1(j) defines an exceptional event as an event which
affects air quality, is not reasonably controllable or preventable, is
an event caused by human activity that is unlikely to recur at a
particular location or a natural event, and is determined by the
Administrator in accordance with 40 CFR 50.14 to be an exceptional
event. Exceptional events do not include stagnation of air masses or
meteorological inversions, meteorological events involving high
temperatures or lack of precipitation, or air pollution relating to
source noncompliance. 40 CFR 50.14(b) states that the EPA shall exclude
data from use in determinations of exceedances and NAAQS violations
where a state demonstrates to the EPA's satisfaction that an
exceptional event caused a specific air pollution concentration in
excess of one or more NAAQS at a particular air quality monitoring
location and otherwise satisfies the requirements of section 50.14.
    Throughout the years 2001 to 2014, the Lamar area monitors have
recorded several exceedances of the PM10 NAAQS that have
resulted from natural high wind exceptional events. The Colorado Air
Pollution Control Division (APCD) flagged a total of 55 exceedances as
exceptional events in the EPA's Air Quality System, which is the EPA's
repository for ambient air quality data. Of these 55 flagged
exceedances, the EPA has concurred on 34. Table 2 summarizes the
exceptional events exceedances that the EPA has concurred on, due to
the State's successful demonstrations that the exceedances were caused
by natural high wind exceptional events. Thus, we are proposing to
exclude 34 flagged exceedances from use in determining that Lamar
continues to attain the 24-hour PM10 NAAQS. See 40 CFR
50.14(b) and (c)(2)(ii).

                               Table 2--Lamar PM10 EPA Approved Exceptional Events
 [Based on data from power plant and municipal complex sites, AQS identification number 08-099-0001 and 08-099-
                                                      0002]
----------------------------------------------------------------------------------------------------------------
                                                              24-hr PM10 Value
             Event date                   Monitoring site       ([mu]g/m\3\)                Data flag

----------------------------------------------------------------------------------------------------------------
02/09/02............................  Power Plant...........               246  High Wind.
03/07/02............................  Power Plant...........               246  High Wind.
05/21/02............................  Power Plant...........               196  High Wind.
05/21/02............................  Municipal.............               183  High Wind.
06/20/02............................  Power Plant...........               181  High Wind.
06/20/02............................  Municipal.............               162  High Wind.
04/05/05............................  Power Plant...........               203  High Wind.
04/05/05............................  Municipal.............               164  High Wind.

05/22/08............................  Power Plant...........               227  High Wind.
01/19/09............................  Power Plant...........               174  High Wind.
01/19/09............................  Municipal.............               173  High Wind.
04/03/11............................  Power Plant...........               169  High Wind.
11/05/11............................  Power Plant...........               192  High Wind.
03/18/12............................  Municipal.............               242  High Wind.
04/2/12.............................  Municipal.............               163  High Wind.
02/08/13............................  Municipal.............               159  High Wind.
04/09/13............................  Municipal.............              1220  High Wind.
05/01/13............................  Municipal.............               207  High Wind.
05/24/13............................  Municipal.............               406  High Wind.
05/25/13............................  Municipal.............               168  High Wind.
05/28/13............................  Municipal.............               201  High Wind.
12/24/13............................  Municipal.............               168  High Wind.
02/16/14............................  Municipal.............               153  High Wind.
03/11/14............................  Municipal.............               387  High Wind.
03/15/14............................  Municipal.............               173  High Wind.
03/18/14............................  Municipal.............               299  High Wind.
03/29/14............................  Municipal.............               263  High Wind.
03/30/14............................  Municipal.............               264  High Wind.
03/31/14............................  Municipal.............               223  High Wind.
04/23/14............................  Municipal.............               350  High Wind.
04/29/14............................  Municipal.............               321  High Wind.
11/10/14............................  Municipal.............               298  High Wind.
04/01/15............................  Municipal.............               253  High Wind.
04/02/15............................  Municipal.............               419  High Wind.
----------------------------------------------------------------------------------------------------------------

    Table 3 below shows the estimated number of exceedances for the
Lamar PM10 maintenance area for the three-year periods of
2001 through 2003, 2002 through 2004, 2003 through 2005, 2004 through
2006, 2005 through 2007, 2006 through 2008, 2007 through 2009, 2008
through 2010, 2009 through 2011, 2010 through 2012, 2010 through 2013,
2012 through 2014, and 2013 through 2015. To attain the standard, the
three-year average number of expected exceedances (values greater than
150 [mu]g/m\3\) must be less than or equal to one. The table reflects
continuous attainment of the PM10 NAAQS.

                Table 3--Lamar PM10 Estimated Exceedances
    [Based on data from power plant and municipal complex sites, AQS
           identification number 08-099-0001 and 08-099-0002]
------------------------------------------------------------------------
                                   3-Year estimated    3-Year estimated
                                       number of           number of
       Design value period          exceedances at      exceedances at
                                      power plant      municipal complex
                                        monitor             monitor
------------------------------------------------------------------------
2001-2003.......................                 0                   0
2002-2004.......................                 0                   0
2003-2005.......................                 0                   0
2004-2006.......................                 0                   0
2005-2007.......................                 0                   0
2006-2008.......................                 0.3                 0
2007-2009.......................                 1                   0
2008-2010.......................                 1                   0
2009-2011.......................                 0.7                 0
2010-2012.......................                 0                   0
2011-2013 \3\...................                NA                   0
2012-2014 \3\...................                NA                   0
2013-2015 \3\...................                NA                   0.4
------------------------------------------------------------------------

III. What was the State's process?

    Section 110(a)(2) of the CAA requires that a state provide
reasonable notice and public hearing before adopting a SIP revision and
submitting it to the EPA.
---------------------------------------------------------------------------

    \3\ On November 21, 2011, the State of Colorado requested the
removal of the Power Plant monitor due to poor citing conditions, as
well as serving as a redundant monitor to the Lamar Municipal
PM10 monitoring site, which is located 0.5 miles to the
southeast. On August 28, 2012 the EPA concurred with the request for
removal of the Lamar Power Plant PM10 SLAMS site/sampler
AQS ID:08-099-0001.
---------------------------------------------------------------------------

    The Colorado Air Quality Control Commission (AQCC) held a public
hearing for the revised Lamar PM10 Maintenance Plan on
December 20, 2012. The AQCC approved and adopted

the revised Lamar PM10 Maintenance Plan during this hearing.
The Governor's designee submitted the revised plan to the EPA on May
13, 2013.
    We have evaluated the revised maintenance plan and have determined
that the State met the requirements for reasonable public notice and
public hearing under section 110(a)(2) of the CAA. On November 13,
2013, by operation of law under CAA section 110(k)(1)(B), the revised
maintenance plan was deemed to have met the minimum ``completeness''
criteria found in 40 CFR part 51, appendix V.

IV. EPA's Evaluation of the Revised Lamar PM10 Maintenance
Plan

    The following are the key elements of a maintenance plan for
PM10: Emission Inventory, Maintenance Demonstration,
Monitoring Network/Verification of Continued Attainment, Contingency
Plan, and Transportation Conformity Requirements/Motor Vehicle Emission
Budget for PM10. Below, we describe our evaluation of these
elements as they pertain to the revised Lamar PM10
Maintenance Plan.

A. Emission Inventory

    The revised Lamar PM10 Maintenance Plan includes three
inventories of daily PM10 emissions for the Lamar area, one
for 2010 as the base year, one interim inventory for 2020, and one
inventory for 2025 as the maintenance year. The APCD developed these
emission inventories using the EPA-approved emissions modeling methods
and updated transportation and demographics data. Each emission
inventory lists estimated PM10 emissions for individual
source categories within the Lamar PM10 maintenance area. A
more detailed description of the 2010, 2020 and 2025 inventories and
information on model assumptions and parameters for each source
category are contained in the State's PM10 maintenance plan
Technical Support Document (TSD). The inventories include the following
source categories: Helicopters, construction, fuel combustion,
railroads, structure fires, wood burning, paved road dust, unpaved road
dust, non-road commercial equipment, non-road construction and mining
equipment, non-road industrial equipment, non-road lawn and garden
equipment (commercial), non-road lawn and garden equipment
(residential), non-road railroad equipment, and highway vehicles. We
find that Colorado has prepared adequate emission inventories for the
area.

B. Maintenance Demonstration

    The revised Lamar PM10 Maintenance Plan uses emissions
roll-forward modeling to demonstrate maintenance of the 24-hour
PM10 NAAQS through 2025. Using assumptions about the
inventory source categories, the State applied the percent change in
emissions for the relevant inventory source categories between 2010 and
2025 to ``roll-forward'' the baseline PM10 concentration.
For example, the State determined that the projected growth of the
emissions inventory from 2010 to 2025 is 4.8%. The growth factor was
applied to the baseline design day PM10 concentration, less
the background PM10 concentration, to obtain a projected
PM10 concentration for the maintenance year. Using 2009 to
2011 data from the Power Plant Monitor and the Municipal Complex
Monitor, the calculated PM10 maintenance concentration in
the year 2025 are 140.2 [mu]g/m\3\ and 125.6 [mu]g/m\3\, respectively.
    To account for new data acquired since the submission of the
State's Plan, we evaluated the 2012-2014 data in AQS to determine
whether maintenance would be demonstrated using a more recent design
value as a starting point. Excluding the exceedances in 2012, 2013 and
2014 that were caused by high wind exceptional events, the EPA employed
an upper tail data distribution curve fit method \4\ and determined the
2012-2014 design value to be 137.7 [mu]g/m\3\. As noted, the State's
emissions inventories contain emissions estimates for 2010, 2020, and
2025. An examination of these inventories reveals that total emissions
in 2020 represent a point on a line of near linear growth from 2015 to
2025.
---------------------------------------------------------------------------

    \4\ The PM10 SIP Development Guideline indicates that
the table look-up method only provides an estimation of the
PM10 design value, and that more accurate design values
can be obtained through the upper tail data distribution curve fit
method. Further information regarding the determination of the 2012-
2014 design value can be found in the March 25, 2016 memo from
Richard M. Payton to the Lamar PM10 Maintenance Plan
Approval Docket.
---------------------------------------------------------------------------

    Acknowledging that the State's analysis is complete, we used a
roll-forward analysis in order to estimate emissions growth from 2014
to 2025 and ensure that growth in emissions would result in
PM10 remaining below the NAAQS. We did this to evaluate
future maintenance in light of the somewhat higher 2012-2014 design
value, compared to the 2009-2011 design value Colorado evaluated.
Following the same approach as Colorado, we first removed the 21 [mu]g/
m\3\ background concentration from the 137.7 [mu]g/m\3\ design value,
which left 116.7 [mu]g/m\3\. Next, relying on the linear growth in
emissions, we estimated 2014 emissions would grow 3.5 percent by
2025.\5\ Using this factor, we projected the 116.7 [mu]g/m\3\ from 2014
forward to 2025 to arrive at a concentration of 120.8 [mu]g/m\3\. We
then added the 21 [mu]g/m\3\ of background to this value to predict a
total concentration in 2025 of 141.8 [mu]g/m\3\. This value is below
the PM10 NAAQS of 150 [mu]g/m\3\ and, thus, is consistent
with maintenance.
---------------------------------------------------------------------------

    \5\ Total emissions in 2010 were 248.0 tons/year, while total
emissions were projected to be 253.7 tons/year in 2020 and 259.9
tons/year in 2025; these values are nearly collinear. Updating the
roll forward for growth from a 2014 monitored value to 2025 requires
a projection of the growth in emissions from 2014 to 2025. Linear
emissions growth from 2010 to 2014 is (259.9 tons/year-248.0 tons/
year)*(2014-2010)/(2025-2010), or 3.2 tons/year, bringing 2014
emissions to (248.0 + 3.2) = 251.2 tons/year. Growth from 2014 to
2025, therefore, is (259.9 tons/year-251.2 tons/year)/251.2 tons/
year * 100% = 3.5%.
---------------------------------------------------------------------------

C. Monitoring Network/Verification of Continued Attainment

    In the revised Lamar PM10 Maintenance Plan, the State
commits to continue to operate an air quality monitoring network in
accordance with 40 CFR part 58 and the EPA-approved Colorado Monitoring
SIP Element to verify continued attainment of the PM10
NAAQS. This includes the continued operation of a PM10
monitor in the Lamar area, which the State will rely on to track
PM10 emissions in the maintenance area. At the time of the
State's submittal, the EPA had not approved the November 21, 2011
request for removal of the Lamar Power Plant monitoring site. On August
28, 2012, EPA approved this request, and the Lamar Power Plant
monitoring site ceased operations on December 31, 2012. We are
proposing to approve the State's commitment as satisfying the relevant
requirements.

D. Contingency Plan

    Section 175A(d) of the CAA requires that a maintenance plan include
contingency provisions to promptly correct any violation of the NAAQS
that occurs after redesignation of an area. To meet this requirement
the State has identified contingency measures along with a schedule for
the development and implementation of such measures. The revised Lamar
PM10 Maintenance Plan indicates that, upon notification of
an exceedance of the PM10 NAAQS, the APCD and local
government staff in the Lamar area will develop appropriate contingency
measures intended to prevent or correct a violation of the
PM10 standard. Upon a violation, a public hearing process at
the State and

local level will begin. The AQCC may endorse or approve local measures,
or it may adopt State enforceable measures. The revised Lamar
PM10 Maintenance Plan states that contingency measures will
be adopted and fully implemented within one year of a violation.
    The State identifies the following as potential contingency
measures in the revised Lamar PM10 Maintenance Plan: (1)
Increased street sweeping requirements; (2) additional road paving
requirements; (3) more stringent street sand specifications; (4) wood
burning restrictions; (5) expanded use of alternative de-icers; (6) re-
establishing new source review permitting requirements for stationary
sources; (7) controls at existing stationary sources; (8)
transportation control measures designed to reduce vehicle miles
traveled; and (9) other emission control measures appropriate for the
area based on the following considerations: Cost effectiveness,
PM10 emission reduction potential, economic and social
concerns, and/or other factors.
    We find that the contingency measures provided in the revised Lamar
PM10 Maintenance Plan are sufficient and meet the
requirements of section 175A(d) of the CAA.

E. Transportation Conformity Requirements: Motor Vehicle Emission
Budget for PM10

    Transportation conformity is required by section 176(c) of the CAA.
EPA's conformity rule at 40 CFR part 93 requires that transportation
plans, programs, and projects conform to SIPs and establishes the
criteria and procedures for determining whether or not they conform.
Conformity to a SIP means that transportation activities will not
produce new air quality violations, worsen existing violations, or
delay timely attainment of the NAAQS. To effectuate its purpose, the
conformity rule requires a demonstration that emissions from the
Regional Transportation Plan (RTP) and the Transportation Improvement
Program (TIP) are consistent with the motor vehicle emissions budget(s)
(MVEB(s)) contained in a control strategy SIP revision or maintenance
plan (40 CFR 93.101, 93.118, and 93.124). An MVEB is defined as the
level of mobile source emissions of a pollutant relied upon in the
attainment or maintenance demonstration to attain or maintain
compliance with the NAAQS in the nonattainment or maintenance area.
Further information concerning the EPA's interpretations regarding
MVEBs can be found in the preamble to the EPA's November 24, 1993,
transportation conformity rule (see 58 FR 62193-62196).
    The revised Lamar PM10 Maintenance Plan contains a
single MVEB of 764 lbs/day of PM10 for the year 2025, the
maintenance year. Once the State submitted the revised plan with the
2025 MVEB to the EPA for approval, 40 CFR 93.118 required that the EPA
determine whether the MVEB was adequate.
    Our criteria for determining whether a SIP's MVEB is adequate for
conformity purposes are outlined in 40 CFR 93.118(e)(4), which was
promulgated August 15, 1997 (see 62 FR 43780). Our process for
determining adequacy is described in our July 1, 2004 Transportation
Conformity Rule Amendments (see 69 FR 40004) and in relevant
guidance.\6\ We used these resources in making our adequacy
determination described below.
---------------------------------------------------------------------------

    \6\ ``Companion Guidance for the July 1, 2004 Final
Transportation Conformity Rule, Conformity Implementation in Multi-
Jurisdictional Nonattainment and Maintenance Areas for Existing and
New Air Quality Standards'' (EPA420-B-04-012 July, 2004).
---------------------------------------------------------------------------

    On November 15, 2013 EPA announced the availability of the revised
Lamar PM10 Maintenance Plan, and the PM10 MVEB,
on the EPA's transportation conformity adequacy Web site. The EPA
solicited public comment on the MVEB, and the public comment period
closed on December 16, 2013. We did not receive any comments. This
information is available at the EPA's conformity Web site: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm#lamar-co.
    By letter to the Colorado Department of Public Health and
Environment dated January 23, 2014, the EPA found that the revised
Lamar PM10 Maintenance Plan and the 2025 PM10
MVEB were adequate for transportation conformity purposes.\7\
---------------------------------------------------------------------------

    \7\ In a Federal Register notice dated October 3, 2014, we
notified the public of our finding (see 79 FR 59767). This adequacy
determination became effective on October 20, 2014.
---------------------------------------------------------------------------

    According to 40 CFR 93.118(e)(1), the EPA-approved 2015
PM10 MVEB must continue to be used for analysis years 2015
through 2024 (as long as such years are within the timeframe of the
transportation plan), unless the State elects to submit a SIP revision
to revise the 2015 PM10 MVEB and the EPA approves the SIP
revision. The revised Lamar PM10 Maintenance Plan did not
revise the previously-approved 2015 PM10 MVEB nor establish
a new MVEB for 2015. Accordingly, the MVEB ``. . . for the most recent
prior year . . .'' (i.e., 2015) from the original maintenance plan must
continue to be used (see 40 CFR 93.118(b)(1)(ii) and (b)(2)(iv)).
    We note that there is a considerable difference between the 2025
and 2015 budgets--764 lbs/day versus 7,534 lbs/day. This is largely an
artifact of changes in the methods, models, and emission factors used
to estimate mobile source emissions. The 2025 MVEB is consistent with
the State's 2025 emissions inventory for vehicle exhaust and road dust,
and, thus, is consistent with the State's maintenance demonstration for
2025.
    The discrepancy between the 2015 and 2025 MVEBs is not a
significant issue for several reasons. As a practical matter, the 2025
MVEB of 764 lbs/day of PM10 would be controlling for any
conformity determination involving the relevant years because
conformity would have to be shown to both the 2015 MVEB and the 2025
MVEB. Also, for any maintenance plan like the revised Lamar
PM10 Maintenance Plan that only establishes a MVEB for the
last year of the maintenance plan, 40 CFR 93.118(b)(2)(i) requires that
the demonstration of consistency with the budget be accompanied by a
qualitative finding that there are no factors that would cause or
contribute to a new violation or exacerbate an existing violation in
the years before the last year of the maintenance plan. Therefore, when
a conformity determination is prepared which assesses conformity for
the years before 2025, the 2025 MVEB and the underlying assumptions
supporting it would have to be considered. Finally, 40 CFR 93.110
requires the use of the latest planning assumptions in conformity
determinations. Thus, the most current motor vehicle and road dust
emission factors would need to be used, and we expect the analysis
would show greatly reduced PM10 motor vehicle and road dust
emissions from those calculated in the first maintenance plan. In view
of the above, the EPA is proposing to approve the 2025 PM10
MVEB of 764 lbs/day.

V. Proposed Action

    We are proposing to approve the revised Lamar PM10
Maintenance Plan that was submitted to us on May 13, 2013, with one
exception. We are not acting on the submitted update to the Natural
Events Action Plan (NEAP), as the NEAP is not part of the SIP. We are
proposing to approve the remainder of the revised maintenance plan
because it demonstrates maintenance through 2025 as required by CAA
section 175A(b), retains the control measures from the initial
PM10 maintenance plan that EPA approved on October 25, 2005,
and meets other CAA requirements for a section 175A maintenance plan.
We are

proposing to exclude from use in determining that Lamar continues to
attain the PM10 NAAQS, exceedances of the PM10
NAAQS that were recorded at the Lamar Power Plant PM10
monitor on February 9, 2002; March 7, 2002; May 21, 2002; June 20,
2002; April 5, 2002; May 22, 2008; Jan 19, 2009; April 3, 2011; and
November 5, 2011 because the exceedances meet the criteria for
exceptional events caused by high wind natural events. Additionally,
the EPA is proposing to exclude from use in determining that Lamar
continues to attain the PM10 NAAQS, exceedances of the
PM10 NAAQS that were recorded at the Municipal Complex
PM10 monitor on May 21, 2002; June 20, 2002; April 5, 2005;
January 19, 2009; February 8, 2013; March 18, 2012; April 2, 2012;
April 9, 2013; May 1, 2013; May 24, 2013; May 25, 2013; May 28, 2013;
December 24, 2013; February 16, 2014; March 11, 2014; March 15, 2014;
March 18, 2014; March 29, 2014; March 30, 2014; March 31, 2014; April
23, 2014; April 29, 2014; November 10, 2014; April 1, 2015; and April
2, 2015 because the exceedances meet the criteria for exceptional
events caused by high wind natural events. We are also proposing to
approve the revised maintenance plan's 2025 transportation conformity
MVEB for PM10 of 764 lbs/day.

VI. Statutory and Executive Orders Review

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations (42 U.S.C. 7410(k), 40 CFR 52.02(a)). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. This proposed action
merely proposes to approve state law as meeting federal requirements
and does not propose to impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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 (Public Law 104-4);
     does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and,
     does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or
in any other area where the EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian Country, the
rule does not have tribal implications and will not impose s ubstantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
Organic Compounds.

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

    Dated: May 19, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2016-12804 Filed 5-31-16; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: July 9, 2007 (Volume 72, Number 130)]
[Notices]
[Page 37278]
[DOCID:fr09jy07-119]

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SECURITIES AND EXCHANGE COMMISSION

Submission for OMB Review; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of Filings and Information Services, Washington, DC
20549.

Extension:
    Rule 19d-1; SEC File No. 270-242; OMB Control No. 3235-0206.

    Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.) the Securities and Exchange Commission
(``Commission'') has submitted to the Office of Management and Budget a
request for extension of the previously approved collection of
information discussed below.
     Rule 19d-1--Notices by Self-Regulatory Organizations of
Final Disciplinary Actions, Denials Bars, or Limitations Respecting
Membership, Association, or Access to Services, and Summary Suspensions
    Rule 19d-1(17 CFR 240.19d-1) (``Rule'') under the Securities
Exchange Act of 1934 (17 U.S.C. 78a et seq.) prescribes the form and
content of notices to be filed with the Commission by self-regulatory
organizations (``SROs'') for which the Commission is the appropriate
regulatory agency concerning the following final SRO actions: (1)
Disciplinary sanctions (including summary suspensions); (2) denials of
membership, participation or association with a member; and (3)
prohibitions or limitations on access to SRO services.
    The Rule enables the Commission to obtain reports from the SROs
containing information regarding SRO determinations to discipline
members or associated persons of members, deny membership or
participation or association with a member, and similar adjudicated
findings. The Rule requires that such actions be promptly reported to
the Commission. The Rule also requires that the reports and notices
supply sufficient information regarding the background, factual basis
and issues involved in the proceeding to enable the Commission: (1) To
determine whether the matter should be called up for review on the
Commission's own motion; and (2) to ascertain generally whether the SRO
has adequately carried out its responsibilities under the Exchange Act.
    It is estimated that 10 respondents will utilize this application
procedure annually, with a total burden of 1175 hours, based upon past
submissions. This figure is based on 10 respondents, spending
approximately 117.5 hours each. Each respondent submitted approximately
235 responses. The staff estimates that the average number of hours
necessary to comply with the requirements of Rule 19d-1 for each
submission is 0.5 hours. The average cost per hour, per each submission
is approximately $101. Therefore, the total cost of compliance for all
the respondents is $118,675. (10 respondents x 235 responses per
respondent x .5 hrs per response x $101 per hour).
    The filing of notices pursuant to the Rule is mandatory for the
SROs, but does not involve the collection of confidential information.
Rule 19d-1 does not have a retention of records requirement.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid control number.
    General comments regarding the estimated burden hours should be
directed to the following persons: (i) Desk Officer for the Securities
and Exchange Commission, Office of Information and Regulatory Affairs,
Office of Management and Budget, Room 10102, New Executive Office
Building, Washington, DC 20503 or send an e-mail to:
<EMAIL_ADDRESS>and (ii) R. Corey Booth, Director/Chief Information

Officer, Securities and Exchange Commission, C/O Shirley Martinson,
6432 General Green Way, Alexandria, VA 22312 or send an email to:
<EMAIL_ADDRESS>Comments must be submitted to OMB within 30 days of

this notice.

    Dated: July 2, 2007.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-13178 Filed 7-6-07; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 88, Number 116 (Friday, June 16, 2023)]
[Rules and Regulations]
[Pages 39368-39373]
[FR Doc No: 2023-13080]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 371

[Docket No. FMCSA-2022-0134]

Definitions of Broker and Bona Fide Agents

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).

ACTION: Notification of final regulatory guidance.

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

SUMMARY: FMCSA issues final guidance, in response to a mandate in the
Infrastructure Investment and Jobs Act (IIJA) to inform the public and
regulated entities about FMCSA's interpretation of the definitions of
``broker'' and ``bona fide agents'' as it relates to all brokers of
transportation by motor vehicle. FMCSA previously published a notice

seeking public comment on the IIJA provision on June 9, 2022, and
issued interim guidance on November 16, 2022. Today's notice makes
updates to November 2022 guidance in response to the public comments
the Agency received.

DATES: This updated guidance is applicable on June 16, 2023.

FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey Secrist, Registration,
Licensing, and Insurance Division, Office of Registration, FMCSA, 1200
New Jersey Avenue SE, Washington, DC 20590-0001,<PHONE_NUMBER>,
[email protected]. If you have questions on viewing or submitting
material to the docket, contact Dockets Operations,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Viewing Comments and Documents

Viewing Documents and Comments

    To view documents related to this docket, go to https://www.regulations.gov/docket/FMCSA-2022-0134/document and choose the
document to review. To view comments, visit the same website, then
click ``Browse All Comments.'' If you do not have access to the
internet, you may view the docket online by visiting Dockets Operations
on the ground floor of the DOT West Building, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. To be sure someone is there to
help you, please call<PHONE_NUMBER> or<PHONE_NUMBER> before visiting
Dockets Operations.

Privacy Act

    All comments the Agency received in response to the November 16,
2022, notice mentioned above were posted without change to http://www.regulations.gov. Anyone may search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
DOT posts these comments, without edit, including any personal
information the commenter provides, to www.regulations.gov, as
described in the system of records notice (DOT/ALL-14 FDMS), which can
be reviewed at www.transportation.gov/privacy.

II. Background

    On November 15, 2021, the President signed the IIJA into law (Pub.
L. 117-58, 135 Stat. 429). Section 23021 of the IIJA \1\ directed the
Secretary (through FMCSA) to issue guidance, within one year of the
date of enactment of the IIJA, clarifying the definitions of the terms
``broker'' and ``bona fide agents'' in 49 CFR 371.2. The guidance must
take into consideration the extent to which technology has changed the
nature of freight brokerage, the role of bona fide agents, and other
aspects of the freight transportation industry. Additionally, when
issuing the guidance, FMCSA must, at a minimum: (1) examine the role of
a dispatch service in the transportation industry; (2) examine the
extent to which dispatch services could be considered brokers or bona
fide agents; and (3) clarify the level of financial penalties for
unauthorized brokerage activities under 49 U.S.C. 14916, applicable to
a dispatch service.\2\
---------------------------------------------------------------------------

    \1\ The full text is available at congress.gov/117/plaws/publ58/PLAW-117publ58.pdf.
    \2\ Due to a statutory omission, FMCSA is unable to assess civil
penalties for violations of 49 U.S.C. 14916 and may pursue such
penalties only through the Department of Justice in federal court.
Congress has indicated interest in FMCSA's statutory authority in a
recent House Appropriations Committee Report.
---------------------------------------------------------------------------

    The notice and comment rulemaking procedures of the Administrative
Procedure Act (APA) do not apply to interpretative rules and general
statements of policy (commonly called ``guidance'') (5 U.S.C.
553(b)(A)). Accordingly, the APA did not specifically require FMCSA to
solicit public comment, and most of the other statutes and executive
orders that would be applicable if the opportunity for prior notice and
public comment was required similarly do not apply. Nevertheless, in
order to ensure that the guidance provides clear, useful, and relevant
information for stakeholders, FMCSA solicited stakeholder input via a
Federal Register notice published on June 9, 2022. (87 FR 35593). FMCSA
then issued a Federal Register notice containing interim guidance. (87
FR 68635, Nov. 16, 2022). As part of the Consolidated Appropriations
Act, 2023 (Pub. L. 117-328 (Dec. 29, 2022)), Congress directed FMCSA to
finalize the guidance by June 16, 2023.\3\
---------------------------------------------------------------------------

    \3\ See Division L Joint Explanatory Statement to the
Consolidated Appropriations Act, 2023. Staff of H.R. Comm. on
Appropriations, 117th Cong. (Comm. Print 2023).
---------------------------------------------------------------------------

    While the interim guidance was effective immediately upon
publication, FMCSA sought additional public comment to determine
whether the guidance should be updated before being finalized. FMCSA
also invited commenters to speak at a listening session during the Mid
America Trucking Show (MATS) on March 31, 2023, but none of the
commenters at the MATS session addressed this guidance. (87 FR 14439,
Mar. 8, 2023). FMCSA also reopened the comment period for written
comments, which were due by April 6, 2023. (87 FR 14322, Mar. 8, 2023).
    FMCSA now issues final guidance on the definitions of ``broker''
and ``bona fide agent,'' including guidance on the role and activities
of entities referred to as ``dispatch services'' and the level of
financial penalties for unauthorized brokerage services provided by
such entities. This document does not have the force and effect of law
and is not meant to bind the public in any way, and the document is
intended only to provide information to the public regarding existing
requirements under the law or agency policies.

Stakeholder Comments

    FMCSA received 55 comments on the interim guidance, in addition to
more than 80 comments received during the previous comment period, and
the Agency appreciates the time and effort stakeholders took in
submitting these comments. The commenters included individuals, trade
associations, brokers, and dispatch services. While the Agency does not
specifically reference all comments in this guidance, the Agency would
like to assure stakeholders it has reviewed and considered all comments
filed.

III. Compliance With IIJA

A. Technology

    The IIJA required FMCSA to examine the impact of technological
advances in the freight transportation industry. In the interim
guidance, FMCSA recognized that freight brokerage has changed
immeasurably due to technology, including moving from a phone-based
system to one conducted mainly over the internet. (87 FR 68637).
However, such changes do not impact the fundamental nature of
brokerage, which involves arranging transportation for compensation,
and hence do not have a significant impact on this guidance.
    Commenters on the interim guidance generally agreed with FMCSA's
position on the extent to which technology has changed the freight
brokerage business and the impact of such changes. FMCSA does not
believe there is any reason to revise its analysis for the final
guidance.

B. Bona Fide Agents

    The IIJA also required FMCSA to examine the role of bona fide
agents in the freight transportation industry. Based upon previous
stakeholder comments, FMCSA determined in the

interim guidance that bona fide agents are generally considered to be
individuals or entities that solicit business for a motor carrier. (87
FR 68638). In the recent comments, several commenters indicated that
this statement may have made the relationship between a motor carrier
and a bona fide agent seem too casual, when in reality a bona fide
agent has a formalized and ongoing relationship with a particular motor
carrier.\4\ FMCSA agrees that the regulatory definition of ``bona fide
agent'' does not contemplate a casual relationship, as it requires the
bona fide agent to be part of the motor carrier's normal operations and
to perform duties as directed by the motor carrier pursuant to a
preexisting agreement which provides for a continuing relationship. 49
CFR 371.2(b).
---------------------------------------------------------------------------

    \4\ See comments of PES, American Trucking Associations Moving &
Storage Conference (ATA M&SC) at 3 FN6, and joint submission from
MoveRescue, Mayflower Transit, LLC, and United Van Lines, LLC (MM&U)
at 6.
---------------------------------------------------------------------------

C. Other Aspects of the Freight Transportation Industry

    Another topic the IIJA requires FMCSA to consider when issuing this
guidance is ``other aspects of the freight transportation industry.''
Numerous drivers and motor carriers raised concerns about economic
pressures negatively affecting the industry.\5\ A group of commenters
also sought action regarding allegations of fraud, supply chain abuse,
theft of cargo, double brokering, and misappropriation of funds
occurring in the industry.\6\ In response, FMCSA notes that ``double
brokering'' is not a term defined by statute or regulation, and
commenters use the term to refer to several different activities.
However, it appears most commenters concerned with double brokering are
referring to ways in which some entities act as brokers without proper
authority.
---------------------------------------------------------------------------

    \5\ See comments of PES, Hans Witt, Kadence Logistics
Dispatching, and multiple anonymous commenters.
    \6\ See two comments from Henry Seaton, on behalf of multiple
stakeholders.
---------------------------------------------------------------------------

    FMCSA also notes that approximately 24 comments received in this
docket asked the Agency to take actions beyond the scope of the
guidance required by the IIJA, specifically regarding issues of
transparency and fairness in transactions between motor carriers and
brokers.\7\
---------------------------------------------------------------------------

    \7\ On March 17, 2023, FMCSA granted petitions from the Owner-
Operator Independent Drivers Association (OOIDA) and the Small
Business in Transportation Coalition (SBTC) to initiate a rulemaking
on issues of transparency in brokered transactions. These comments
appear to be related to this future rulemaking, and do not raise
issues related to the guidance presented here. However, FMCSA will
solicit public comment regarding transparency issues at the
appropriate time.
---------------------------------------------------------------------------

    While the guidance contained in this notice is limited to the
issues Congress required FMCSA to examine with the enactment of IIJA,
FMCSA nevertheless recognizes that its guidance is operating in a
broader context and has impacts beyond the immediate focus of this
guidance. In today's notice, FMCSA has worked to avoid creating
unintended consequences, in issuing its interpretation of its
regulations and related matters. While the guidance may be relevant to
stakeholder compliance with FMCSA's regulations, any changes to FMCSA's
regulations, and consequently to a stakeholder's compliance
responsibilities, would need to be made through a rulemaking
proceeding.

IV. Final Guidance

    The interim guidance concerned six main areas: (1) the definition
of broker; (2) the definition of bona fide agent; (3) the role of
dispatch services in the transportation industry; (4) how to determine
whether a dispatch service is acting as a broker or as a bona fide
agent; (5) services dispatchers may provide without broker authority;
and (6) services for which dispatchers must obtain broker authority in
order to provide. The guidance also clarified the level of financial
penalties for unauthorized brokerage activities under 49 U.S.C. 14916.
    FMCSA has considered the comments received and has made several
updates to the guidance, discussed further below, and now issues final
guidance on these topics.

A. Definition of Broker

    Final Guidance: FMCSA has determined that the definition of
``broker'' at 49 CFR 371.2(a) is adequate. Handling money exchanged
between shippers and motor carriers is one factor that strongly
suggests the need for broker authority, but it is not an essential
requirement for one to be considered a broker.
    Discussion: As explained in the interim guidance, FMCSA is unable
to change the statutory definition of ``broker'' at 49 U.S.C. 13102(2).
(87 FR 68637). Nor is it able to change the regulatory definition of
``broker'' at 49 CFR 371.2(a) without going through the rulemaking
process. However, FMCSA did clarify in the interim guidance that,
although handling money exchanged between shippers and motor carriers
strongly suggests the need for broker authority, it is only one factor
of the analysis and is not, standing alone, determinative. (87 FR
68638). Stakeholder reactions to FMCSA's interim guidance were mainly
supportive.\8\
---------------------------------------------------------------------------

    \8\ See, e.g., comments of SBTC at 1, ATA M&SC at 2-3 and ATA
MS&C Supplemental Comment at 1, MM&U at 4-5, and Transportation
Intermediaries Association (TIA) at 3.
---------------------------------------------------------------------------

    Stakeholders asked FMCSA to clarify whether internet-based load
matching services and load boards are considered brokers.\9\ While this
topic garnered few comments, those that addressed it agreed that these
services should not be considered brokers.\10\ However, some commenters
expressed concerns about motor carriers, brokers, and dispatch services
perpetrating fraud through the use of load boards.\11\
---------------------------------------------------------------------------

    \9\ See comments of ATA M&SC at 3.
    \10\ See comments of ATA M&SC at 3 and ATA M&SC Supplemental
Comment at 1; SBTC at 2.
    \11\ See comments of Hans Witt and Robert Bradley.
---------------------------------------------------------------------------

    In response, FMCSA has determined that merely making information
about potential shippers publicly available, regardless of whether a
fee is charged, does not require an entity to obtain broker authority
as long as the entity making the leads available is not otherwise
involved in any transaction between the shipper and a motor carrier.

B. Definition of Bona Fide Agent

    Final Guidance: A bona fide agent may be either an employee of a
motor carrier or a contractor but must perform its duties as specified
in a preexisting agreement between the parties. While FMCSA has
determined that the definition of ``bona fide agent'' in 49 CFR
371.2(b) is adequate, FMCSA clarifies that the term ``allocating
traffic,'' which appears in the definition, means any exercise of
discretion on an agent's part when assigning a load to a motor carrier.
If an entity representing more than one carrier exercises such
discretion, it would not meet the definition of ``bona fide agent.''
    Discussion: The regulations define ``bona fide'' agents as
``persons who are part of the normal organization of a motor carrier
and perform duties under the carrier's directions pursuant to a
preexisting agreement which provides for a continuing relationship,
precluding the exercise of discretion on the part of the agent in
allocating traffic between the carrier and others.'' 49 CFR 371.2(b).
FMCSA cannot change this definition absent a rulemaking.
    In the interim guidance, FMCSA determined that representing more
than one motor carrier does not necessarily mean one is a broker rather
than a bona fide agent. (87 FR 68638). Any

determination will be highly fact specific and will entail determining
whether the person or company is engaged in the allocation of traffic
between motor carriers. Several commenters requested more clarity on
the meaning of ``allocation of traffic.'' \12\ FMCSA intended this term
to mean any exercise of discretion, choice, or decision-making on the
agent's part about which motor carrier to assign a load.
---------------------------------------------------------------------------

    \12\ See comments of SBTC at 2-5, ATA M&SC at 4, and an
anonymous commenter.
---------------------------------------------------------------------------

    If a bona fide agent represents only one motor carrier, it will
assign all loads it sources to that particular carrier and thus, no
exercise of discretion is necessary, and there is no dispute that the
agent is not a broker. However, an agent representing multiple carriers
should be careful to structure its agreements to avoid the possibility
of allocating traffic. The scope of these agreements and the agent's
compliance with the terms of the agreements are key factors in the
analysis of whether such an agent may qualify as a bona fide agent
under the regulatory definition at 49 CFR 371.2(b). To illustrate,
FMCSA presents two examples of situations where a bona fide agent may
be able to represent multiple motor carriers without engaging in
allocation of traffic.
    The first example is where a bona fide agent represents motor
carriers that require the agent to source loads originating in
different geographic areas and selected motor carriers will not pick up
freight in the other carriers' locations. For instance, if the
agreement between the bona fide agent and Carrier A requires the agent
to source loads originating only in Maine, New Hampshire, Vermont, or
Massachusetts, and its agreement with Carrier B requires it to source
loads originating only in Florida, Georgia, or Alabama, the entity
would not need to exercise discretion because all loads originating in
a particular geographic location would necessarily be assigned to the
relevant carrier.
    A second example is if the bona fide agent has agreements with
multiple carriers to source specific types of loads and these services
do not overlap. For instance, if the agent's agreement with Carrier A
requires the agent to source only hazardous materials loads, and the
agreement with Carrier B requires it to exclude hazardous material
loads, the agent would not have to exercise discretion as to which
carrier to assign a load to, because the carriers are not willing or
able to haul the same loads if sourced by the bona fide agent.
Similarly, if Carrier A operates refrigerated trucks while Carrier B
operates flatbed trucks, a bona fide agent may be able to represent
both carriers without engaging in allocation of traffic.
    However, if the agent's agreements require it to source the same
type of loads for both carriers without geographic restrictions as
described above, it could not represent both carriers without
registering for broker authority, because any load assignments would
necessarily require the entity to choose between carriers and would
therefore constitute an allocation of traffic.
    Several commenters operating in the household goods industry also
asked FMCSA to clarify whether this guidance applies to ``household
goods agents,'' as that term is defined at 49 U.S.C. 13907 and 49 CFR
375.205.\13\ FMCSA initially determined it would address issues
previously raised by the household goods industry in a separate
proceeding. (87 FR 68638 at FN20). However, the stakeholders believe
this would be unnecessary and asked FMCSA to address their concerns in
this final guidance.\14\ FMCSA agrees with the stakeholders and,
consequently, is issuing guidance here.
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    \13\ See comments of ATA M&SC at 3, MM&U at 6.
    \14\ See comments of ATA M&SC at 3, MM&U at 6.
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    FMCSA recognizes that entities operating in the household goods
transportation industry are subject to additional regulations.
``Household goods broker'' is defined in 49 CFR 371.103 as ``a person,
other than a motor carrier or an employee or bona fide agent of a motor
carrier, that as a principal or agent sells, offers for sale,
negotiates for, or holds itself out by solicitation, advertisement, or
otherwise as selling, providing, or arranging for, transportation of
household goods by motor carrier for compensation.'' Moreover, 49 CFR
375.205 permits household goods motor carriers engaged in interstate
transportation of household goods to have agents and provides that a
``prime agent,'' a type of household good agent, ``does not include a
household goods broker or freight forwarder.'' Thus, to the extent a
person or company is operating as a prime agent in the household goods
sector, this guidance would not be applicable to such person or
company.

C. Role of Dispatch Services

    Final Guidance: There is no statutory or regulatory definition of a
dispatch service, nor is there a commonly accepted definition of such a
service. Some features of dispatch services include working exclusively
for motor carriers, not for shippers; sourcing loads for motor
carriers; and performing additional services for motor carriers that
are unrelated to sourcing shipments. FMCSA does not have statutory
authority to regulate dispatch services unless such entities also meet
the criteria for registration as brokers, freight forwarders, and/or
motor carriers.
    Discussion: The IIJA required the agency to examine the role of
dispatch services in the transportation industry and the extent to
which such services could be considered brokers or bona fide agents.
However, Congress did not define the term ``dispatch service'' in the
IIJA provision mandating this guidance, and the comments FMCSA received
prior to issuing the interim guidance made clear that there is no
universally accepted definition of the term. Thus, FMCSA attempted to
determine what constitutes a ``dispatch service'' by examining the role
such entities play in the transportation industry and set out several
common features of dispatch services in the interim guidance. (87 FR
68639).
    TIA suggested that FMCSA should require all dispatch services to
register with FMCSA, either as brokers or as a new class of licensed
entity.\15\ Freight Girlz also asked FMCSA to develop and issue a
certificate of compliance to ``legitimate dispatch companies'' and
suggested numerous criteria for obtaining such a certificate.\16\
However, FMCSA cannot define a new class of operating authority in this
guidance. The existing registration statutes do not authorize FMCSA to
regulate any entity in the transportation industry other than motor
carriers, brokers, and freight forwarders. If a dispatch service or
other entity does not meet the criteria for inclusion in one of these
categories, FMCSA is unable to require registration or otherwise
regulate that entity.
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    \15\ See comment of TIA at 3.
    \16\ See comment of Freight Girlz.
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    Some commenters on the interim guidance indicated that dispatch
services are more attuned than brokers are to a carrier's needs and a
specific driver's preferences, location, and other data.\17\ However,
relatively few comments specifically addressed this portion of the
interim guidance, as most commenters were concerned with the issue of
how to determine whether a dispatch service is acting as a broker or as
a bona fide agent.
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    \17\ See comments of Project Freight, LLC, Michael White, OOIDA
and several anonymous commenters.

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    After reviewing the comments, FMCSA has determined that the interim
guidance is appropriate and has not made any significant changes in the
final guidance.

D. Dispatch Service: Broker or Bona Fide Agent

    Final Guidance: Dispatch services may be classified as either
brokers or bona fide agents, depending on the nature and scope of their
activities. This requires a fact-specific analysis of whether the
dispatch service's activities meet the criteria set out in the
statutory and regulatory definitions of ``broker'' or ``bona fide
agent.'' While no single factor is paramount in assessing the business
relationship between a dispatch service and a motor carrier, the extent
of a motor carrier's control is relevant because the greater control a
carrier has over a dispatcher's actions, the less likely the dispatcher
is to exercise independent discretion in sourcing and allocating loads
and hence need broker authority.
    Discussion: The IIJA mandated that FMCSA examine when a dispatch
service could be considered a broker and when it could be considered a
bona fide agent. Approximately 20 commenters addressed this topic, and
many of these comments indicated continuing uncertainty about how to
properly categorize dispatch services. In response, FMCSA provides
additional clarification in the final guidance and has reorganized the
factors in the following sections indicating either the ability to
perform services without broker authority or the need to obtain broker
authority.
    FMCSA does not believe it is the intent of Congress to eliminate
the use of dispatch services in the freight transportation industry. It
is also clear, based on feedback from stakeholders, that both small and
large motor carriers believe dispatch services play an important role
in their operations. In particular, small motor carriers who cannot
afford a fulltime employee may rely on dispatch services to perform
various functions, including ensuring the motor carrier has a steady
stream of shipments, while allowing the motor carrier to focus on its
core business of transporting freight.
    FMCSA clarifies that, to determine whether a dispatch service is a
bona fide agent, one must analyze whether the services the dispatcher
is providing fall within the definition of bona fide agent in 49 CFR
371.2(b). If a dispatch service arranges transportation on behalf of
multiple motor carriers and engages in the allocation of traffic,
pursuant to 49 CFR 371.2, it is not a bona fide agent and must obtain
broker operating authority registration. Ultimately, this analysis
requires careful consideration of the nature and scope of the
relationship between the dispatch service and the motor carrier, the
number and type of carriers the dispatch service represents, and the
specific services the dispatcher performs.
    FMCSA understands that dispatch services may not be able to operate
a successful business if they only work for a single, small carrier.
Thus, the Agency has attempted in this guidance to describe the maximum
flexibility permissible under applicable law. However, FMCSA also
recognizes that some dispatch services currently operating without
broker authority may determine, based on the guidance, that their
activities require them to either reduce the number of carriers they
represent or apply for broker authority.
    To help dispatch services determine whether their activities
require them to apply for broker authority or not, FMCSA provides
additional guidance in the following sections regarding specific
activities that dispatch services may engage in without obtaining
broker authority, and those that require broker authority.

E. Factors Indicating Broker Authority Is Not Required

    Final Guidance: A dispatch service that meets the following
criteria would generally be considered a bona fide agent and would not
require broker authority. This list is not exclusive, and a dispatch
service does not necessarily have to meet every listed factor,
depending on its specific activities.
    (1) The dispatch service has a written legal contractual
relationship with a motor carrier that clearly reflects the motor
carrier is appointing the dispatch service as a licensed agent for the
motor carrier. This is often a long-term contractual relationship. The
written legal contract should specify the insurance and liability
responsibilities of the dispatch service and motor carrier.
    (2) The dispatch service complies with all state licensing
requirements, if applicable.
    (3) The dispatch service goes through a broker to arrange for the
transportation of shipments for the motor carrier and does not seek or
solicit shippers for freight.
    (4) The dispatch service does not provide billing or accept
compensation from the broker, third-party logistics company, or
factoring company, but instead receives compensation from the motor
carrier(s) based on the pre-determined written legal contractual
agreement.
    (5) The dispatch service is not an intermediary or involved in the
financial transaction between a broker and motor carrier.
    (6) The dispatch service is an IRS 1099 recipient from the motor
carrier, or a W2 employee of the motor carrier as specified in the
legal written contract agreement.
    (7) The dispatch service discloses that they are a dispatch service
operating under an agreement with a specific motor carrier, and the
shipment is arranged for that motor carrier only.
    (8) The dispatch service does not subsequently assign or arrange
for the load to be carried/moved by another motor carrier.
    (9) A dispatch service does not provide their ``services'' for a
motor carrier unless that motor carrier specifically appointed the
dispatch service as their agent in accordance with the aforementioned
requirements.

F. Factors Indicating Broker Authority Is Required

    The following factors indicate the dispatch service should obtain
broker authority. This list is not exclusive, and a dispatch service
does not necessarily have to meet every listed factor, depending on its
specific activities.
    (1) The dispatch service interacts with or negotiates any shipment
of freight directly with the shipper, or a representative of the
shipper.
    (2) The dispatch service accepts or takes compensation for a load
from the broker or factoring company or is involved in any part of the
monetary transaction between any of those entities.
    (3) The dispatch service arranges for a shipment of freight for a
motor carrier and there is no written legal contract with the motor
carrier that meets Section IV.E.1 of the Guidance above.
    (4) The dispatch service accepts a shipment without a truck/
carrier, then attempts to find a truck/carrier to move the shipment.
    (5) The dispatch service engages in allocation of traffic by
accepting a shipment that could be transported by more than one carrier
with which it has agreements and assigns it to one of those carriers.
    (6) The dispatch service is a named party on the shipping contract.
    (7) The dispatch service is soliciting to the open market of
carriers for the purposes of transporting a freight shipment.

G. Financial Penalties

    Finally, the IIJA required FMCSA to clarify the level of penalties
for

unauthorized brokerage applicable to dispatch services. In the interim
guidance, FMCSA determined that this assessment is straightforward. If
the dispatch service is deemed to be providing unauthorized brokerage
services pursuant to 49 U.S.C. 14916, the service will be subject to
applicable penalties. If no finding of unauthorized brokerage is made,
it will not be subject to such penalties.
    After reviewing the public comments, FMCSA has determined that the
interim guidance is appropriate and adopts the same analysis in the
final guidance.

Robin Hutcheson,
Administrator.
[FR Doc. 2023-13080 Filed 6-15-23; 8:45 am]
BILLING CODE 4910-EX-P