[Federal Register Volume 84, Number 135 (Monday, July 15, 2019)]
[Notices]
[Pages 33800-33801]
[FR Doc No: 2019-14977]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2014-0381; FMCSA-2014-0382; FMCSA-2015-0115]

Qualification of Drivers; Exemption Applications; Epilepsy and
Seizure Disorders

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

ACTION: Notice of renewal of exemptions; request for comments.

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SUMMARY: FMCSA announces its decision to renew exemptions for three
individuals from the requirement in the Federal Motor Carrier Safety
Regulations (FMCSRs) that interstate commercial motor vehicle (CMV)
drivers have ``no established medical history or clinical diagnosis of
epilepsy or any other condition which is likely to cause loss of
consciousness or any loss of ability to control a CMV.'' The exemptions
enable these individuals who have had one or more seizures and are
taking anti-seizure medication to continue to operate CMVs in
interstate commerce.

DATES: The exemptions were applicable on June 10, 2019. The exemptions
expire on June 10, 2021. Comments must be received on or before August
14, 2019.

ADDRESSES: You may submit comments identified by the Federal Docket
Management System (FDMS) Docket No. FMCSA-2014-0381; FMCSA-2014-0382 or
FMCSA-2015-0115 (as applicable) using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m.,
ET, Monday through Friday, except Federal Holidays.
     Fax: 1-202-493-2251.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation'' portion of the SUPPLEMENTARY
INFORMATION section for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE, Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,
ET, Monday through Friday, except Federal holidays. If you have
questions regarding viewing or submitting material to the docket,
contact Docket Services, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Submitting Comments

    If you submit a comment, please include the docket number for this
notice (Docket No. FMCSA-2014-0381; FMCSA-2014-0382 or FMCSA-2015-
0115), indicate the specific section of this document to which each
comment applies, and provide a reason for each suggestion or
recommendation. You may submit your comments and material online or by
fax, mail, or hand delivery, but please use only one of these means.
FMCSA recommends that you include your name and a mailing address, an
email address, or a phone number in the body of your document so that
FMCSA can contact you if there are questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2014-0381; FMCSA-2014-0382 or FMCSA-2015-
0115, in the keyword box, and click ``Search.'' When the new screen
appears, click on the ``Comment Now!'' button and type your comment
into the text box on the following screen. Choose whether you are
submitting your comment as an individual or on behalf of a third party
and then submit.
    If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the
comment period.

B. Viewing Documents and Comments

    To view comments, as well as any documents mentioned in this notice
as being available in the docket, go to http://www.regulations.gov.
Insert the

docket number, FMCSA-2014-0381; FMCSA-2014-0382 or FMCSA-2015-0115, in
the keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590,
between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal
holidays.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

II. Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
for up to five years if it finds such exemption would likely achieve a
level of safety that is equivalent to, or greater than, the level that
would be achieved absent such exemption. The statute also allows the
Agency to renew exemptions at the end of the five-year period. FMCSA
grants exemptions from the FMCSRs for a two-year period to align with
the maximum duration of a driver's medical certification.
    The physical qualification standard for drivers regarding epilepsy
found in 49 CFR 391.41(b)(8) states that a person is physically
qualified to drive a CMV if that person has no established medical
history or clinical diagnosis of epilepsy or any other condition which
is likely to cause the loss of consciousness or any loss of ability to
control a CMV.
    In addition to the regulations, FMCSA has published advisory
criteria to assist Medical Examiners in determining whether drivers
with certain medical conditions are qualified to operate a CMV in
interstate commerce. [49 CFR part 391, APPENDIX A TO PART 391--MEDICAL
ADVISORY CRITERIA, section H. Epilepsy: Sec.  391.41(b)(8), paragraphs
3, 4, and 5.]
    The three individuals listed in this notice have requested renewal
of their exemptions from the epilepsy and seizure disorders prohibition
in 49 CFR 391.41(b)(8), in accordance with FMCSA procedures.
Accordingly, FMCSA has evaluated these applications for renewal on
their merits and decided to extend each exemption for a renewable two-
year period.

III. Request for Comments

    Interested parties or organizations possessing information that
would otherwise show that any, or all, of these drivers are not
currently achieving the statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any adverse evidence submitted
and, if safety is being compromised or if continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315, FMCSA will take immediate steps to revoke the
exemption of a driver.

IV. Basis for Renewing Exemptions

    In accordance with 49 U.S.C. 31136(e) and 31315, each of the three
applicants has satisfied the renewal conditions for obtaining an
exemption from the epilepsy and seizure disorders prohibition. The
three drivers in this notice remain in good standing with the Agency,
have maintained their medical monitoring and have not exhibited any
medical issues that would compromise their ability to safely operate a
CMV during the previous two-year exemption period. In addition, for
Commercial Driver's License (CDL) holders, the Commercial Driver's
License Information System (CDLIS) and the Motor Carrier Management
Information System (MCMIS) are searched for crash and violation data.
For non-CDL holders, the Agency reviews the driving records from the
State Driver's Licensing Agency (SDLA). These factors provide an
adequate basis for predicting each driver's ability to continue to
safely operate a CMV in interstate commerce. Therefore, FMCSA concludes
that extending the exemption for each renewal applicant for a period of
two years is likely to achieve a level of safety equal to that existing
without the exemption.
    As of June 10, 2019, and in accordance with 49 U.S.C. 31136(e) and
31315, the following three individuals have satisfied the renewal
conditions for obtaining an exemption from the epilepsy and seizure
disorders prohibition in the FMCSRs for interstate CMV drivers: Monte
J. DeRocini (PA); Teddy H. Dixon (GA); and Bryan R. Jones (PA).
    The drivers were included in docket number FMCSA-2014-0381; FMCSA-
2014-0382; and FMCSA-2015-0115. Their exemptions are applicable as of
June 10, 2019, and will expire on June 10, 2021.

V. Conditions and Requirements

    The exemptions are extended subject to the following conditions:
(1) Each driver must remain seizure-free and maintain a stable
treatment during the two-year exemption period; (2) each driver must
submit annual reports from their treating physicians attesting to the
stability of treatment and that the driver has remained seizure-free;
(3) each driver must undergo an annual medical examination by a
certified Medical Examiner, as defined by 49 CFR 390.5; and (4) each
driver must provide a copy of the annual medical certification to the
employer for retention in the driver's qualification file, or keep a
copy of his/her driver's qualification file if he/she is self-employed.
The driver must also have a copy of the exemption when driving, for
presentation to a duly authorized Federal, State, or local enforcement
official. The exemption will be rescinded if: (1) The person fails to
comply with the terms and conditions of the exemption; (2) the
exemption has resulted in a lower level of safety than was maintained
before it was granted; or (3) continuation of the exemption would not
be consistent with the goals and objectives of 49 U.S.C. 31136(e) and
31315.

VI. Preemption

    During the period the exemption is in effect, no State shall
enforce any law or regulation that conflicts with this exemption with
respect to a person operating under the exemption.

VII. Conclusion

    Based on its evaluation of the three exemption applications, FMCSA
renews the exemptions of the aforementioned drivers from the epilepsy
and seizure disorders prohibition in 49 CFR 391.41(b)(8). In accordance
with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for two
years unless revoked earlier by FMCSA.

Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2019-14977 Filed 7-12-19; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register Volume 81, Number 210 (Monday, October 31, 2016)]
[Proposed Rules]
[Pages 75347-75349]
[FR Doc No: 2016-26199]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 81, No. 210 / Monday, October 31, 2016 /
Proposed Rules

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 259

[Docket No. DOT-OST-2016-0208]
RIN 2105-AE53

Refunding Baggage Fees for Delayed Checked Bags

AGENCY: Office of the Secretary (OST), Department of Transportation
(DOT).

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The Department of Transportation (DOT or Department) is
soliciting public comment and feedback on various issues related to the
requirement for airlines to refund checked baggage fees when they fail
to deliver the bags in a timely manner, as provided by the FAA
Extension, Safety, and Security Act of 2016.

DATES: Comments should be filed by November 30, 2016. Late-filed
comments will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2016-0208 by any of the following methods:
     Federal eRulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave. SE., Washington, DC, between 9 a.m. and 5
p.m. ET, Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    Instructions: You must include the agency name and docket number
DOT-OST-2016-0208 or the Regulatory Identification Number (RIN) for the
rulemaking at the beginning of your comment. All comments received will
be posted without change to http://www.regulations.gov, including any
personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all
comments received in any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.
    Docket: For access to the docket to read background documents and
comments received, go to http://www.regulations.gov or to the street
address listed above. Follow the online instructions for accessing the
docket.

FOR FURTHER INFORMATION CONTACT: Clereece Kroha, Senior Trial Attorney,
Office of the Assistant General Counsel for Aviation Enforcement and
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave.
SE., Washington, DC 20590,<PHONE_NUMBER> (phone),<PHONE_NUMBER> (fax),
<EMAIL_ADDRESS>(email).

SUPPLEMENTARY INFORMATION: The Department of Transportation (DOT or
Department) is seeking comment on the appropriate means to implement a
requirement in recent legislation for airlines to refund checked
baggage fees when they fail to deliver the bags in a timely manner.
Specifically, the Department seeks comment on how to define a baggage
delay, and the appropriate method for providing the refund for delayed
baggage.

Background

    On April 25, 2011, the Department of Transportation published its
second Enhancing Airline Passenger Protections final rule that
requires, among other things, that U.S. and foreign air carriers adopt
and adhere to a customer service plan that addresses various consumer
issues. See 76 FR 23110 (April 25, 2011). In the proposal preceding
that final rule, the Department solicited comments on whether we should
include as standards: (1) That carriers reimburse passengers the fee
charged to transport a bag if that bag is lost or not timely delivered,
and (2) the time when a bag should be considered not to have been
timely delivered (e.g., delivered on same or earlier flight than the
passenger, delivered within 2 hours of the passenger's arrival). After
reviewing the comments received, we adopted in the final rule a
customer service standard that requires carriers to reimburse
passengers for any fee charged to transport a bag if the bag is lost.
We decided to not require carriers to reimburse passengers for any fee
charged to transport a bag that is not timely delivered. In making this
determination, we stated that, as is the case with transporting
passengers, while delay in receiving baggage may be inconvenient, once
the carrier delivers a bag, the service has been performed. We
clarified that although not required to refund baggage fees in the case
of delayed delivery of a checked bag, carriers must comply with the
Department's baggage liability rule, 14 CFR part 254, and applicable
international agreements, to compensate passengers for direct or
consequential damages resulting from the delay in delivering of
luggage, up to the limits set by the rule and the agreements.
    Baggage fees, along with other ancillary fees, have become an
increasingly important component of the airline industry's revenue
structure. According to data from the Department's Bureau of
Transportation Statistics (BTS), the top 13 U.S. carriers collectively
generated over $3.8 billion in revenue in 2015 from baggage fees.\1\
While we have no doubt that airlines continue to invest in baggage
handling infrastructure and technology to improve the efficiency and
quality of their services, we also realize that baggage delays do occur
and affect many consumers on a daily basis. Data from the Department's
Air Travel Consumer Report demonstrate that, in 2015, the 13 largest
U.S. carriers received close to 2 million mishandled baggage reports
from passengers for their domestic scheduled flights.\2\ Although these
mishandled baggage reports also include reports of lost, damaged, and
pilfered

baggage in addition to delayed baggage, this figure suggests that the
number of delayed baggage incidents is likely significant.\3\ Since the
issuance of the 2011 final rule in which the Department decided not to
require airlines to refund baggage fees for delayed bags, many
consumers and consumer rights advocacy groups have voiced their opinion
that airlines should be required to refund checked baggage fees if they
fail to deliver bags on time.
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    \1\ Source: Baggage Fees by Airline 2015, Bureau of
Transportation Statistics, Office of the Assistant Secretary for
Research and Technology, updated on May 2, 2016. https://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/subject_areas/airline_information/baggage_fees/html/2015.html.
    \2\ Source: Air Travel Consumer Report, February 2016 Edition,
Page 31. https://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/subject_areas/airline_information/baggage_fees/html/2015.html. The
Department does not collect information on mishandled baggage for
international flights.
    \3\ The mishandled baggage data as reported to the Department is
based on the number of mishandled baggage reports received from
passengers by the reporting carriers. Each report may involve more
than one piece of mishandled baggage.
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    This matter has also caught the attention of the Congress. In 2016,
both the Senate and the House of Representatives included in their
Federal Aviation Administration reauthorization bills a provision to
require the Department to issue a rule that mandates refunds of baggage
fees for delayed bags.\4\ On July 15, 2016, the President signed into
law the FAA Extension, Safety, and Security Act of 2016 (``FAA
Extension Act'' or ``Act'') which includes a requirement for the
Department to issue a rule mandating that airlines provide automated
refunds to passengers for any fee charged to transport a bag if the bag
is delayed.\5\
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    \4\ Sec. 3109, Federal Aviation Administration Reauthorization
Act of 2016, S. 2658, 114th Cong. (2015-2016); Sec. 507, Aviation
Innovation, Reform, and Reauthorization Act of 2016, H.R. 4441,
114th Cong. (2015-2016).
    \5\ See, FAA Extension, Safety, and Security Act of 2016, Public
Law 114-190, July 15, 2016.
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Defining a Baggage Delay

    Section 2305 of the FAA Extension Act provides that the Department
shall issue a final rule within one year of the enactment of the Act
that requires U.S. and foreign carriers to promptly provide an
automated refund for any ancillary fees paid by the passenger for
checked baggage if the carriers fail to deliver the bag to passengers
within 12 hours of arrival for domestic flights and within 15 hours of
arrival for international flights, if the passenger notifies the
carrier about the delayed or lost baggage. The Act also allows the
Department to extend these timeframes to up to 18 hours for domestic
flights and up to 30 hours for international flights, if the Department
determines that the 12-hour or 15-hour standards are not feasible and
would adversely affect consumers in certain cases.
    Each delayed bag affects an individual passenger's travel
experience, resulting in inconvenience and other harms. The Department
is seeking comments from all stakeholders in order to determine how to
implement section 2305 of the Act so the mandated regulation would best
achieve Congress' and the Department's goal of mitigating the
inconvenience and harm to consumers caused by delayed baggage.
    DOT is seeking comment to help it determine the appropriate length
of delay within the statutory parameters that would trigger the refund
requirement. As stated above, the Act provides that a refund should be
issued to passengers if the carrier fails to deliver the checked
baggage to the passenger not later than 12 hours after the arrival of a
domestic flight, or not later than 15 hours after the arrival of an
international flight. The Act also authorizes the Department to extend
these timeframes to up to 18 hours for domestic flights and 30 hours
for international flights if the Secretary determines that the 12-hour
or 15-hour standards are infeasible and would ``adversely affect
consumers in certain cases.'' The Department invites public input on
the 12 and 15 hour standards prescribed in the Act as well as any other
standards within the statutory parameters, which are for domestic
flights between 12 and 18 hours after the flight's arrival and for
international flights between 15 and 30 hours after the flight's
arrival. The Department seeks comment on why a particular length of
time within this timeframe would be more appropriate than other times.
    The Department also seeks comment on how the rule should deal with
a passenger itinerary that consists of an international flight
connecting to a domestic flight. Is there a reason that this itinerary
should be considered an international flight within the meaning of the
statute, or does the final domestic flight cause the passenger to be
treated as domestic for purposes of the statute and rule? Is there a
reason to distinguish between a standard interline (i.e., multiple-
carrier) connection on a single ticket and a connection constructed by
the passenger using two tickets (e.g., where the carriers do not
interline with each other)?
    We solicit comments on the ways in which standard industry practice
for baggage interlining and mishandled baggage may affect the mandated
rule. For example, the last carrier on an interline itinerary is
generally responsible for handling a mishandled-baggage report to
conclusion, but on a baggage delay on an interline trip this will
generally not be the carrier to whom the passenger paid the baggage
fee.
    In addition to situations, such as interline, in which there are
multiple entities involved in the transportation of bags, there are
also situations in which there are multiple entities involved in the
transactions of bag fees. Specifically, although not a common practice
among most carriers, there are instances in which a carrier authorizes
a ticket agent, by contractual agreement, to collect baggage fees from
the ticket agent's customers on behalf of the carrier. To the extent an
entity other than the carrier is involved in collecting baggage fees,
we seek comments on who should be held responsible to refund the bag
fees for delayed bags. Should we hold both entities responsible? Based
on the structure of the agreement between the two entities, and common
business practice, what is the best way to ensure that bag fees are
refunded in a timely manner and to avoid passengers being sent back and
forth between two entities to determine which entity is responsible?
    As the statute gives the Department some flexibility to modify the
length of delay taking into consideration feasibility and any negative
impact on consumers, we construe the statute's use of the phrase ``in
certain cases'' to mean that Congress intends to provide the Department
the flexibility to differentiate the length of delay that triggers a
refund based on certain circumstances, if appropriate, instead of
applying one standard to all domestic flights, and another standard to
all international flights, if the Department determines this is
appropriate. In that regard, in addition to domestic versus
international flights, is there a reason that the rule should establish
a secondary set of criteria, such as the flight duration and/or the
frequency of service in question? Is the frequency of the operation by
the transporting carrier or all carriers that operate on the same route
relevant to defining the delay? Since some international flights are
short haul flights (e.g., trans-border flights), and some domestic
flights can last for over 10 hours (e.g., New York to Honolulu), should
we instead tier the delay standard based on the length of the
passenger's flight(s)?
    DOT is also seeking comment on how to determine when the clock
stops running for purposes of measuring the delay. The Act provides
that the 12 hour and 15 hour clock stops when the carrier ``delivers
the checked baggage to the passenger.'' Sometimes, a passenger may stay
at the arrival airport and wait for the delayed baggage if the delay is
likely to be within a few hours. However, when the delay goes beyond a
certain point, the industry's common practice is to deliver the bags to
the passenger's residence or a designated location requested by the
passenger. In

some cases, the passengers may choose to receive notice when their bags
arrive and pick up the bags at the carrier's baggage office at the
destination airport. How should we determine that the bags have been
``delivered'' to the passenger and therefore stop the clock from
running in each of these situations?
    DOT seeks comment on the number of bags that are delayed annually
based on the 12 and 18 hour and 15 and 30 hour statutory timeframes,
and lost bags. The Department receives information on the number of
mishandled-baggage reports filed by passengers, but we do not have data
on how many of these are delayed bags, and how many are lost.
Information on the number of delayed and lost bags that would be
affected by this rulemaking would help the Department to better
estimate the impact this rule would have on consumers and airlines.

Method for Refunding Delayed Baggage

    The Department is also seeking comment on the appropriate method
for providing a refund for delayed baggage. The Department's credit
card refund regulation, 14 CFR part 374, implements the Consumer Credit
Protection Act and Regulation Z of the Board of Governors of the
Federal Reserve System, 15 U.S.C. 1601-1693r and 12 CFR part 226
(Regulation Z) with respect to air carriers and foreign air carriers.
It states that when refunds are due on purchases with a credit card, a
carrier must transmit a credit statement to the credit card issuer
within seven business days of receipt of full documentation for the
refund requested. In addition, the Department requires that, with
respect to purchases with forms of payment other than credit cards, an
airline must provide a refund within 20 days of receipt of full
documentation of such a request. See 14 CFR 259.5(b)(5). The Department
applies these refund standards to all refunds that are due to
consumers, including airfare refunds and ancillary fee refunds. In
order to receive a refund under Regulation Z, a consumer must request
the refund from the carrier and provide all necessary supporting
documents. In contrast, the Act states that carriers should ``promptly
provide an automated refund'' to an eligible passenger when the
carriers fail to meet the applicable time limit in delivering the
checked bag, and the passenger has notified the carrier of the lost or
delayed checked baggage. Under the Act, an ``automated refund'' should
be issued to passengers as long as the delay has met the threshold
timeframe and the passenger has notified the carrier about the delayed
or lost bag. In that regard, we view the delayed baggage fee refund
provision in the FAA Extension Act differently from Regulation Z in
that the Act only requires a passenger to notify the carrier that a bag
is delayed or lost, and there is not a requirement for the passenger to
request a refund for the baggage fee. We emphasize that since the Act's
automated refund requirement covers all bags that are delayed for more
than a set number of hours, it will also cover ``lost bags,'' refunding
fees charged for which is already required by 14 CFR 259.5(b)(3).\6\ As
such, both bags delayed for more than the set number of hours and bags
that are considered ``lost'' would be eligible for an automated refund.
---------------------------------------------------------------------------

    \6\ We have not defined ``lost'' for purposes of 14 CFR
259.5(b)(3) mandating a refund of the baggage fee for lost bags.
Instead, in a Frequently Asked Questions document issued by the
Department's Office of Aviation Enforcement and Proceedings, that
office states that if a carrier unreasonably refuses to consider a
bag to be lost after it has been missing for a considerable period
of time, it could be subject to enforcement action for violating the
statutory prohibition against unfair and deceptive practices. See,
Answers to Frequently Asked Questions Concerning the Enforcement of
the Second Final Rule on Enhancing Airline Passenger Protections
(EAPP #2), last updated May 8, 2015, https://www.transportation.gov/sites/dot.gov/files/docs/EAPP_2_FAQ_2_0.pdf.
---------------------------------------------------------------------------

    The Department seeks comment on whether prescribing a specific
mechanism for the carriers to use to provide the statutorily required
automated refund would negatively or positively impact carriers and
consumers. What procedures would be necessary on interline itineraries,
for which the carrier to whom the passenger reports the delayed bag at
his or her destination or stopover is not the carrier to whom the
passenger had paid the baggage fee? In addition to soliciting comment
on all of the issues and concerns identified above, we also welcome and
any other information relevant to this issue. This specifically
includes comments and data on the cost impact on new-entrant carriers
(many of whom do not have interline agreements) of the time standard
developed in this proceeding, and the cost impact on regional airlines.

    Issued this 18th day of October, 2016, in Washington, DC.
Anthony R. Foxx,
Secretary of Transportation.
[FR Doc. 2016-26199 Filed 10-28-16; 8:45 am]
 BILLING CODE 4910-9X-P


[Federal Register Volume 87, Number 54 (Monday, March 21, 2022)]
[Notices]
[Page 16012]
[FR Doc No: 2022-05913]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4499-DR; Docket ID FEMA-2022-0001]

Oregon; Amendment No. 7 to Notice of a Major Disaster Declaration

AGENCY: Federal Emergency Management Agency, Department of Homeland
Security (DHS).

ACTION: Notice.

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SUMMARY: This notice amends the notice of a major disaster declaration
for the State of Oregon (FEMA-4499-DR), dated March 28, 2020, and
related determinations.

DATES: This change occurred on March 4, 2022.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA) hereby gives notice that pursuant to the authority vested in the
Administrator, under Executive Order 12148, as amended, Willie G. Nunn,
of FEMA is appointed to act as the Federal Coordinating Officer for
this disaster.
    This action terminates the appointment of Vincent J. Maykovich as
Federal Coordinating Officer for this disaster.

    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2022-05913 Filed 3-18-22; 8:45 am]
BILLING CODE 9111-23-P


[Federal Register: December 7, 2009 (Volume 74, Number 233)]
[Notices]
[Page 64065-64066]
[DOCID:fr07de09-878]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings

November 30, 2009.
    Take notice that the Commission has received the following Natural
Gas Pipeline Rate and Refund Report filings:
    Docket Numbers: RP10-174-000.
    Applicants: Colorado Interstate Gas Company.
    Description: Colorado Interstate Gas Company submits Eleventh
Revised Sheet 230 et al. to FERC Gas Tariff, First Revised Volume 1, to
be effective 1/1/10.
    Filed Date: 11/23/2009.
    Accession Number: 20091125-0040.
    Comment Date: 5 p.m. Eastern Time on Monday, December 07, 2009.

    Docket Numbers: RP10-175-000.
    Applicants: Tennessee Gas Pipeline Company.
    Description: Tennessee Gas Pipeline Company submits two negotiated
rate firm transportation arrangements with Macquarie Cook Energy, LLC.
    Filed Date: 11/23/2009.
    Accession Number: 20091125-0039.
    Comment Date: 5 p.m. Eastern Time on Monday, December 07, 2009.

    Docket Numbers: RP10-176-000.
    Applicants: Southern Natural Gas Company.
    Description: Southern Natural Gas Company submits letter re
Derivation of Surcharge Adjustment pursuant to Section 14.2 of the
General Terms and Conditions of FERC Gas Tariff--Schedule 1.
    Filed Date: 11/23/2009.
    Accession Number: 20091125-0037.
    Comment Date: 5 pm Eastern Time on Monday, December 07, 2009.

    Docket Numbers: RP10-177-000.
    Applicants: Gas Transmission Northwest Corporation.
    Description: Gas Transmission Northwest Corporation submits Twenty
First Revised Sheet 24 et al. to FERC Gas Tariff, Third Revised Volume
1A, to be effective 11/21/09.
    Filed Date: 11/23/2009.
    Accession Number: 20091125-0038.
    Comment Date: 5 pm Eastern Time on Monday, December 07, 2009.

    Docket Numbers: RP10-178-000.
    Applicants: Steuben Gas Storage Company.
    Description: Steuben Gas Storage Company submits Sixth Revised
Sheet 13 et al. of its FERC Gas Tariff, Original Volume 1, to be
effective 12/1/09.
    Filed Date: 11/24/2009.
    Accession Number: 20091125-0071.
    Comment Date: 5 p.m. Eastern Time on Monday, December 07, 2009.

    Docket Numbers: RP10-180-000.
    Applicants: Transcontinental Gas Pipe Line Company.
    Description: Transcontinental Gas Pipe Line Co, LLC submits First
Revised Sheet No. 500 et al. to FERC Gas Tariff, Fourth Revised Volume
No. 1.
    Filed Date: 11/25/2009.
    Accession Number: 20091125-0137.
    Comment Date: 5 p.m. Eastern Time on Monday, December 07, 2009.

    Docket Numbers: RP10-181-000.
    Applicants: Natural Gas Pipeline Company of America.
    Description: Natural Gas Pipeline Company of America LLC submits
Original Sheet No 35C.06 to FERC Gas Tariff, Seventh Revised Volume No
1.
    Filed Date: 11/25/2009.
    Accession Number: 20091125-0133.
    Comment Date: 5 p.m. Eastern Time on Monday, December 07, 2009.

    Docket Numbers: RP10-182-000.
    Applicants: Natural Gas Pipeline Company of America.
    Description: Natural Gas Pipeline Company of America LLC submits
amendment to an existing discount rate Transportation Rate Schedule FTS
Agreement between Natural and MidAmerican Energy Company.
    Filed Date: 11/25/2009.
    Accession Number: 20091125-0135.
    Comment Date: 5 p.m. Eastern Time on Monday, December 07, 2009.

    Docket Numbers: RP10-183-000.
    Applicants: Natural Gas Pipeline Company of America.
    Description: Natural Gas Pipeline Company of America LLC submits
amendment to the Transportation Rate Schedule FTS Agreement with a
negotiated rate exhibit between Natural and Wisconsin Electric Power
Company.
    Filed Date: 11/25/2009.
    Accession Number: 20091125-0134.
    Comment Date: 5 p.m. Eastern Time on Monday, December 07, 2009.

    Docket Numbers: RP10-184-000.
    Applicants: Gulf Crossing Pipeline Company LLC.
    Description: Gulf Crossing Pipeline Company LLC submits permanent
Capacity Release Negotiated Rate Letter Agreement.
    Filed Date: 11/25/2009.
    Accession Number: 20091125-0136.
    Comment Date: 5 p.m. Eastern Time on Monday, December 07, 2009.
    Any person desiring to intervene or to protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Rules of Practice and Procedure (18 CFR 385.211 and Sec.
385.214) on or before 5 p.m. Eastern time on the specified comment
date. It is not necessary to separately intervene again in a subdocket
related to a compliance filing if you have previously intervened in the
same docket. Protests will be considered by the Commission in
determining the appropriate action to be taken, but will not serve to
make protestants parties to the proceeding. Anyone filing a motion to
intervene or protest must serve a copy of that document on the
Applicant. In reference to filings initiating a new proceeding,
interventions or protests submitted on or before the comment deadline
need not be served on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://
www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St., NE., Washington, DC 20426.
    The filings in the above proceedings are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that

enables subscribers to receive e-mail notification when a document is
added to a subscribed dockets(s). For assistance with any FERC Online
service, please e-mail<EMAIL_ADDRESS>or call (866) 208-
3676 (toll free). For TTY, call<PHONE_NUMBER>.

Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. E9-29086 Filed 12-4-09; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register: September 9, 2008 (Volume 73, Number 175)]
[Notices]
[Page 52403-52404]
[DOCID:fr09se08-114]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[FEMA-1785-DR]

Florida; Amendment No. 1 to Notice of a Major Disaster
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice amends the notice of a major disaster declaration
for the State of Florida (FEMA-1785-DR), dated August 24, 2008, and
related determinations.

DATES: Effective Date: August 26, 2008.

FOR FURTHER INFORMATION CONTACT: Peggy Miller, Disaster Assistance
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The notice of a major disaster declaration
for the State of Florida is hereby amended to include the Individual
Assistance program for the following area among those areas determined
to have been adversely affected by the catastrophe declared a major
disaster by the President in his declaration of August 24, 2008.

    Brevard County for Individual Assistance (already designated for
Public Assistance).

(The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034, Disaster Unemployment
Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048,
Disaster Housing Assistance to Individuals and Households in
Presidentially Declared Disaster Areas; 97.049, Presidentially
Declared Disaster Assistance--Disaster Housing Operations for
Individuals and Households; 97.050, Presidentially Declared Disaster
Assistance to Individuals and Households--Other Needs; 97.036,
Disaster Grants--Public Assistance

(Presidentially Declared Disasters); 97.039, Hazard Mitigation
Grant.)

R. David Paulison,
Administrator, Federal Emergency Management Agency.
[FR Doc. E8-20827 Filed 9-8-08; 8:45 am]

BILLING CODE 9110-10-P


[Federal Register Volume 75, Number 221 (Wednesday, November 17, 2010)]
[Notices]
[Pages 70237-70241]
[FR Doc No: 2010-28971]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9228-3]

California State Motor Vehicle Pollution Control Standards;
California Heavy-Duty On-Highway Otto-Cycle Engines and Incomplete
Vehicle Regulations; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision Granting a Waiver of California's Heavy-Duty
On-Highway Otto-Cycle Engines and Incomplete Vehicle Regulations.

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SUMMARY: The Environmental Protection Agency (EPA), pursuant to section
209(b) of the Clean Air Act (Act), is granting California its request
for a waiver of Clean Air Act preemption for three sets of amendments
applicable to its heavy-duty Otto-cycle engines and incomplete vehicle
regulations for the 2004, 2005 through 2007, and 2008 and subsequent
model year regulations. These amendments align each of California's
exhaust emission standards and test procedures with its federal
counterpart in an effort to streamline and harmonize the California and
federal programs.

ADDRESSES: Materials relevant to this decision are contained in Docket
ID No. EPA-HQ-OAR-2006-0018. Publicly available docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at the Air and Radiation Docket in the EPA Headquarters
Library, EPA West Building, Room 3334, located at 1301 Constitution
Avenue, NW., Washington, DC. The Public Reading Room is open to the
public on all federal government work days from 8:30 a.m. to 4:30 p.m.;
generally, it is open Monday through Friday, excluding holidays. The
telephone number for the Reading Room is<PHONE_NUMBER>. The Air and
Radiation Docket and Information Center's Web site is http://www.epa.gov/oar/docket.html. The electronic mail (e-mail) address for
the Air and Radiation Docket is<EMAIL_ADDRESS>the telephone
number is<PHONE_NUMBER>, and the fax number is<PHONE_NUMBER>. An
electronic version of the public docket is available through the
federal government's electronic public docket and comment system. You
may access EPA dockets at http://www.regulations.gov. After opening the
http://www.regulations.gov Web site, enter EPA-HQ-OAR-2006-0018 in the
``Enter Keyword or ID'' fill-in box to view documents in the record of
CARB's amendments to its heavy-duty Otto-cycle engines and incomplete
vehicle regulations. Although a part of the official docket, the public
docket does not include Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
    EPA's Office of Transportation and Air Quality also maintains a Web
page that contains general information on its review of California
waiver requests. Included on that page are links to several of the
prior waiver Federal Register notices which are cited throughout
today's notice; the page can be accessed at http://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and
Innovative Strategies Division, U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone:
(202) 343-9256. Fax:<PHONE_NUMBER>. E-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

A. CARB's 2000 and 2002 Amendments

    On December 7, 2005, the California Air Resources Board (``CARB'')
submitted a request to the Environmental Protection Agency (``EPA'')
for confirmation that CARB's amendments, adopted in 2000 and 2002, to
the California heavy-duty Otto-cycle regulations for 2004, 2005-2007,
and 2008 and subsequent model years (MYs) are within-the-scope of
previously granted waivers of preemption under section 209(b) of the
Act, 42 U.S.C. 7543(b). On June 15, 2006, CARB supplemented its
original request of December 7, 2005, with a letter adding to its
rationale and additionally requesting, in the alternative, for EPA to
consider the request as a new waiver of preemption under section 209(b)
of the Act.
    EPA first granted waivers for the alignment of California's heavy-
duty engine and vehicle emission standards and test procedures in 1988,
separately for the diesel engine standards and the gasoline engine
standards.\1\ Since the 1988 waivers, CARB has requested and received
confirmation that various amendments to the standards and test
procedures for the current CARB categories of heavy-duty vehicles are
within-the-scope of the previously granted waivers. Significant among
these, in 1997 CARB requested a within-the-scope determination for a
revision to its heavy-duty engine emission standards for NOX
and PM for both diesel and Otto-cycle (gasoline) engines applicable in
the 1998 and subsequent model years.\2\ EPA approved the request on
October 6, 2004.\3\
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    \1\ 52 FR 20777 (June 3, 1987), 53 FR 7021 (March 4, 1988).
    \2\ 53 FR 6197 (March 1, 1988) (Diesel) and 53 FR 7022 (March 4,
1988) (Otto-cycle).
    \3\ 69 FR 59920 (October 6, 2004).
---------------------------------------------------------------------------

    CARB's current request concerns its amendments to the exhaust
emission standards for heavy-duty Otto-cycle engines and vehicles above
8,500 pounds gross vehicle weight rating (GVWR) for the 2004, 2005
through 2007, and the 2008 and subsequent MYs. California amended its
heavy-duty Otto-cycle regulations through two separate CARB
rulemakings: one in 2000 (hereinafter the ``2000 amendments'') and the
other in 2002 (hereinafter the ``2002 amendments'').\4\ Both
rulemakings followed EPA rulemakings increasing the stringency of
federal emission standards, which surpassed the stringency of
California's previous requirements for 2005 and all subsequent model
years. Therefore, CARB believes its effort to harmonize standards with
the federal heavy-duty Otto-cycle engine standards allows manufacturers
to make one vehicle to meet both California and federal standards and
participate in the federal averaging, banking, and trading program
without compromising the stringency or efficacy of its emission
standards.\5\
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    \4\ The 2004/5 Standards were formally adopted December 27,
2000, by Executive Order G-00-069 (CARB, Item 7). The 2008 Standards
were formally adopted December 12, 2002, by Executive Order G-03-016
issued September 5, 2003. (CARB, Item 20).
    \5\ California Air Resources Board Request for Confirmation that
Amendments Are Within the Scope of Previous Waivers of Preemption
Under Clean Air Act Section 209(b), December 7, 2005, pg. 2.
---------------------------------------------------------------------------

    CARB's 2000 and 2002 amendments affect the heavy-duty Otto-cycle
standards for oxides of nitrogen (NOX), non-methane
hydrocarbons plus oxides of nitrogen (NMHC+NOX), and carbon
monoxide (CO). Specifically, the amendments: (1) Harmonize the
California and federal MY 2005 and beyond NOX standards at
1.0 grams per brake horsepower-hour (g/bhp-hr); (2) align the
California and federal standards for 0.14 g/bhp-hr for NMHC, 0.20 g/
bhp-hr for NOX, 14.4 g/bhp-hr for CO; and (3) create a new
0.01 g/bhp-hr standard for particulate matter (PM). These changes amend
title 13, California Code of Regulations (CCR), section 1956.8 \6\ and
the incorporated amended ``California Exhaust Emission Standards and
Test Procedures for 1987 through 2003 Model Heavy-Duty Otto-cycle
Engines and Vehicles,'' and the adoption and the amendments to the
incorporated in ``California Exhaust Emission Standards and Test
Procedures for 2004 and Subsequent Model Heavy-Duty Otto-cycle
Engines.''
---------------------------------------------------------------------------

    \6\ See California Air Resources Board Request for Confirmation
that Amendments Are Within the Scope of Previous Waivers of
Preemption Under Clean Air Act Section 209(b), December 7, 2005, pg.
2.
---------------------------------------------------------------------------

B. Clean Air Act Waivers of Preemption

    Section 209(a) of the Act preempts states and local governments
from setting emission standards for new motor vehicles and engines; it
provides:

    No State or any political subdivision thereof shall adopt or
attempt to enforce any standard relating to the control of emissions
from new motor vehicles or new motor vehicle engines subject to this
part. No state shall require certification, inspection or any other
approval relating to the control of emissions from any new motor
vehicle or new motor vehicle engine as condition precedent to the
initial retail sale, titling (if any), or registration of such motor
vehicle, motor vehicle engine, or equipment.

Through operation of section 209(b) of the Act, California is able to
seek and receive a waiver of section 209(a)'s preemption. If certain
criteria are met, section 209(b) (1) of the Act requires the
Administrator, after notice and opportunity for public hearing, to
waive application of the prohibitions of section 209(a). Section 209(b)
(1) only allows a waiver to be granted for a State that had adopted
standards (other than crankcase emission standards) for the control of
emissions from new motor vehicles or new motor vehicle engines prior to
March 30, 1966, if the State determines that its standards will be, in
the aggregate, at least as protective of public health and welfare as
applicable Federal standards (this is known as California's
``protectiveness determination''). Because California was the only
state to have adopted standards prior to 1966, it is the only state
that is qualified to seek and receive a waiver.\7\ The Administrator
must grant a waiver unless she finds that: (A) California's above-noted
``protectiveness determination'' is arbitrary and capricious; \8\ (B)
California does not need such State standards to meet compelling and
extraordinary conditions; \9\ or (C) California's standards and
accompanying enforcement procedures are not consistent with section
202(a) of the Act.\10\ Regarding consistency with section 202(a), EPA
reviews California's standards for technological feasibility and
evaluates testing and enforcement procedures to determine whether they
would be inconsistent with federal test procedures (e.g., if
manufacturers would be unable to meet both California and federal test
requirements using the same test vehicle).\11\
---------------------------------------------------------------------------

    \7\ See S.Rep. No. 90-403 at 632 (1967).
    \8\ CAA section 209(b)(1)(A).
    \9\ CAA section 209(b)(1)(B).
    \10\ CAA section 209(b)(1)(C).
    \11\ See, e.g., 74 FR at 32767 (July 8, 2009); see also Motor
and Equip. Mfrs. Assoc. v. EPA, 627 F.2d 1095, 1126 (DC Cir. 1979).
---------------------------------------------------------------------------

    If California amends regulations that were previously granted a
waiver of preemption, EPA can confirm that the amended regulations are
within-the-scope of the previously granted waiver when three conditions
are met. First, the amended regulations must not undermine California's
determination that its standards, in the aggregate, are

as protective of public health and welfare as applicable federal
standards. Second, the amended regulations must not affect consistency
with section 202(a) of the Act. Third, the amended regulations must not
raise any ``new issues'' affecting EPA's prior waivers. CARB, in its
Resolutions 00-45 and 02-31, expressly found that its amendments met
each of these criteria.\12\
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    \12\ CARB -determinations affirmed in Executive Orders G-00-069
and G-03-016.
---------------------------------------------------------------------------

C. EPA's Consideration of CARB's Request

    Because EPA believed it possible that CARB's amendments did in fact
raise ``new issues'' through the imposition of more stringent standards
for heavy-duty Otto-cycle engines above 8,500 pounds GVWR for the 2004,
2005 through 2007, and the 2008 and subsequent MYs, EPA offered the
opportunity for a public hearing and requested public comments on these
new requirements.\13\ EPA received no request for a public hearing, nor
were any comments received on the CARB amendments at issue. Therefore,
EPA has made this determination based on the information submitted by
CARB in its request.
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    \13\ 72 FR 27114 (May 14, 2007).
---------------------------------------------------------------------------

D. Standard and Burden of Proof in Clean Air Act Section 209
Proceedings

    In Motor and Equip. Mfrs. Assoc. v. EPA, 627 F.2d 1095 (DC Cir.
1979) (herein ``MEMA I''), the United States Court of Appeals stated
that the Administrator's role in a section 209 proceeding is to:
[C]onsider all evidence that passes the threshold test of materiality
and * * * thereafter assess such material evidence against a standard
of proof to determine whether the parties favoring a denial * * * have
shown that the factual circumstances exist in which Congress intended a
denial * * *.\14\
---------------------------------------------------------------------------

    \14\ Motor and Equip. Mfrs. Assoc. v. EPA (MEMA I), 627 F.2d
1095, 1122 (DC Cir. 1979).
---------------------------------------------------------------------------

    The court in MEMA I considered the standards of proof pursuant to
section 209 for the two findings necessary to grant a waiver for an
``enforcement procedure'' (as opposed to the standards themselves): (1)
``Protectiveness in the aggregate'' and (2) ``consistency with section
202(a)'' findings. The court instructed that, ``the standard of proof
must take account of the nature of the risk of error involved in any
given decision, and it therefore varies with the finding involved. We
need not decide how this standard operates in every waiver decision.''
\15\
---------------------------------------------------------------------------

    \15\ Id.
---------------------------------------------------------------------------

    The court upheld the Administrator's position that, to deny a
waiver, ``there must be `clear and compelling evidence' to show that
proposed procedures undermine the protectiveness of California's
standards.'' \16\ The court noted that this standard of proof ``also
accords with the congressional intent to provide California with the
broadest possible discretion in setting regulations it finds protective
of the public health and welfare.'' \17\
---------------------------------------------------------------------------

    \16\ Id.
    \17\ Id.
---------------------------------------------------------------------------

    With respect to the consistency finding, the court did not
articulate a standard of proof applicable to all section 209
proceedings, but found that the opponents of the waiver were unable to
meet their burden of proof even if the standard were a mere
preponderance of the evidence. MEMA I made clear that: [E]ven in the
two areas concededly reserved for Federal judgment by this
legislation--the existence of ``compelling and extraordinary''
conditions and whether the standards are technologically feasible--
Congress intended that the standards of EPA review of the State
decision to be a narrow one.'' \18\
---------------------------------------------------------------------------

    \18\ See, e.g., 40 FR 23, 102-103 (May 28, 1975).
---------------------------------------------------------------------------

    Furthermore, Congress intended that EPA's review of California's
decision-making be narrow in scope.\19\ This has led EPA in the past to
reject arguments that are not specified within the statute as grounds
for denying a waiver or authorization:
---------------------------------------------------------------------------

    \19\ See, e.g., MEMA I, 627 F.2d at 1110-11, citing H.R. Rep.
No. 294, 95th Cong., 1st Sess. 301-02 (1977).

    The law makes it clear that the waiver requests cannot be denied
unless the specific findings designated in the statute can properly
be made. The issue of whether a proposed California requirement is
likely to result in only marginal improvement in air quality not
commensurate with its cost or is otherwise an arguably unwise
exercise of regulatory power is not legally pertinent to my decision
under section 209, so long as the California requirement is
consistent with section 202(a) and is more stringent than applicable
Federal requirements in the sense that it may result in some further
reduction in air pollution in California.\20\
---------------------------------------------------------------------------

    \20\ 36 FR 17458 (August 31, 1971). Note that the ``more
stringent'' standard expressed here in 1971, was superseded by the
1977 amendments to section 209, which established that California's
standards must be, in the aggregate, at least as protective of
public health and welfare as applicable Federal standards.

Thus, EPA's consideration of all the evidence submitted concerning this
waiver decision is circumscribed by its relevance to those questions
which the Administrator is directed to consider by section 209.
    Finally, opponents of the waiver bear the burden of showing whether
California's waiver request is inconsistent with section 202(a). As
found in MEMA I, this obligation rests firmly with opponents in a
section 209 proceeding; the court held that:

    The language of the statute and its legislative history indicate
that California's regulations, and California's determinations that
they comply with the statute, when presented to the Administrator
are presumed to satisfy the waiver requirements and that the burden
of proving otherwise is on whoever attacks them. California must
present its regulations and findings at the hearing, and thereafter
the parties opposing the waiver request bear the burden of
persuading the Administrator that the waiver request should be
denied.\21\
---------------------------------------------------------------------------

    \21\ MEMA I at 1121.

    The Administrator's burden, on the other hand, is to determine that
she has made a reasonable and fair evaluation of the information in the
record when coming to the waiver decision. As the court in MEMA I
stated, ``[h]ere, too, if the Administrator ignores evidence
demonstrating that the waiver should not be granted, or if [s]he seeks
to overcome that evidence with unsupported assertions of [her] own,
[s]he runs the risk of having [her] waiver decision set aside as
arbitrary and capricious.''\22\ Therefore, the Administrator's burden
is to act ``reasonably.''\23\
---------------------------------------------------------------------------

    \22\ Id. at 1126.
    \23\ Id.
---------------------------------------------------------------------------

E. Within-the-Scope Waivers

    CARB suggests in its request letter(s) that since these amendments
are standards and test procedures that EPA previously issued waivers
for, that the amendments should be found to be within-the-scope of
previous EPA waivers.\24\ As noted above, if California acts to amend a
previously authorized standard or accompanying enforcement procedure,
the amendment may be considered within-the-scope of a previously issued
waiver provided that it: (1) Does not undermine California's
determination that its standards, in the aggregate, are as protective
of public health and welfare as applicable federal standards, (2) does
not affect consistency with section 202 of the Act, and (3) raises no
new issues affecting EPA's previous waiver.\25\
---------------------------------------------------------------------------

    \24\ CARB Request for Confirmation that Amendments Are Within
the Scope of Previous Waivers of Preemption Under Clean Air Act
Section 209(b), December 7, 2005, at 1 citing 68 FR 19811 and 60 FR
22034 (April 28, 2005).
    \25\ See, e.g., 51 FR 12391 (April 10, 1986) and 65 FR 69673,
69674 (November 20, 2000). The first within-the-scope determination
stated that a CARB request made subsequent to an EPA waiver,
``exists within the meaning and intent of the waiver granted.'' 37
FR 14831 (July 25, 1972).

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

    Regardless of whether the first two criteria can be established,
the third criterion alone prevents EPA from considering this request as
within-the-scope of EPA's prior waivers. EPA has previously stated that
if CARB's amendments raise ``new issues'' affecting previously granted
waiver, we cannot confirm that those amendments are within-the-scope of
previous waivers.\26\ Further, EPA has stated in prior waiver and
authorization determinations that increases in the numerical stringency
of standards are ``new issues'' for which a full waiver or
authorization is required.\27\ Here, CARB increased the stringency of
its exhaust emission standards for heavy-duty Otto-cycle engines and
vehicles above 8,500 pounds GVWR for the 2004, 2005 through 2007, and
the 2008 and subsequent MYs. Therefore, EPA believes it appropriate to
go beyond an examination of whether the new standards affect the prior
consistency with section 202(a) findings and, in this context, require
a new analysis of whether (A) California's above-noted ``protectiveness
determination'' is arbitrary and capricious; \28\ (B) California does
not need such State standards to meet compelling and extraordinary
conditions; \29\ or (C) California's standards and accompanying
enforcement procedures are not consistent with section 202(a) of the
Act.\30\
---------------------------------------------------------------------------

    \26\  See, e.g., 75 FR 8056 (February 23, 2010); 70 FR 22034
(April 28, 2005).
    \27\ See, e.g., 71 FR 44027 at 44028 (August 3, 2006) (``EPA
believed it possible that CARB's amendments do in fact raise ``new
issues'' as they impose new more stringent standards ***'') and 51
FR 6308 at 6309 (February 21, 1986) (``[T]hese amendments do raise
significant new issues not considered in prior waiver decisions. In
effect, California's amendments establish new standards ***. '').
    \28\ CAA section 209(b)(1)(A).
    \29\ CAA section 209(b)(1)(B).
    \30\ CAA section 209(b)(1)(C).
---------------------------------------------------------------------------

II. Discussion

    As detailed below, EPA finds that CARB has demonstrated that it
meets the requirements for a new section 209(b) waiver for heavy-duty
Otto-cycle engines and vehicles above 8,500 pounds GVWR and, therefore,
believes a new waiver is appropriate.

A. California's Protectiveness Determination

    Section 209(b)(A)(1) of the Act instructs that EPA cannot grant a
waiver if the agency finds that CARB was arbitrary and capricious in
its determination that its standards are, in the aggregate, at least as
protective of public health and welfare as applicable Federal
standards. CARB's Board made protectiveness determinations in
Resolutions 00-45 and 02-31, dated December 7, 2000 and December 12,
2002. Resolution 00-45 found that amendments to sections 1956.8 and
1961 of title 13, California Code of Regulations (CCR), as set forth in
its Attachment A, the amendments to (and adoption of) the documents
incorporated by those regulations as set forth in Attachments B, C, and
D, with the modifications set forth in Attachment E to Resolution 00-45
would not cause the California emission standards, in the aggregate, to
be less protective of public health and welfare than applicable Federal
standards.\31\ Resolution 02-31 found that amendments to sections
1956.1, 1956.8, 1965, and 1978 of title 13, CCR, as set forth in
Attachment A and the amendments to, and adoption of, the documents
incorporated by reference in those regulations as set forth in
Attachments B, D, E, F, G and H to Resolution 02-31, and section 1961,
title 13, CCR, as set forth in Attachment A thereto, and the amendments
to the document incorporated by that regulation as set forth in
Attachment C, with the modifications set forth in Attachment I to the
Resolution would not cause the California emission standards, in the
aggregate, to be less protective of public health and welfare than
applicable Federal standards.\32\ CARB's protectiveness determinations
in both rulemakings were, therefore, based on comparisons to the
Federal standards thereby demonstrating that CARB's standards and test
procedures align with the Federal program.
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    \31\ ``Be it further resolved that the Board hereby determines
that the California motor vehicle emission standards for passenger
cars, light-duty trucks and medium duty engines, and for heavy-duty
Otto-cycle engines, with the amendments approved herein, are, in the
aggregate, at least as protective of public health and welfare than
applicable federal standards.'' CARB Resolution 00-45 at 6 (December
7, 2000).
    \32\ ``Be it further resolved that the Board hereby determines
that the regulations approved and adopted herein will not cause
California motor vehicle emission standards, in the aggregate, to be
less protective of public health and welfare than applicable federal
standards.'' CARB Resolution 02-31 at 6 (December 12, 2002).
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    EPA did not receive any comments stating that CARB's amendments are
not, in the aggregate, as stringent as applicable Federal standards.
Therefore, based on the record before me, I cannot find that CARB's
amendments, as noted, would cause the California heavy-duty Otto-cycle
exhaust emission standards, in the aggregate, to be less protective of
public health and welfare than applicable Federal standards.

B. Need for California Standards to Meet Compelling and Extraordinary
Conditions

    Section 209(b)(1) of the Act also instructs that EPA cannot grant a
waiver if the agency finds that California ``does not need such State
standards to meet compelling and extraordinary conditions, or (C) such
State standards and accompanying enforcement procedures are not
consistent with section [202(a)] of the Act.'' This criterion restricts
EPA's inquiry to whether California needs its own mobile source
pollution program to meet compelling and extraordinary conditions, and
not whether any given standards are necessary to meet such
conditions.\33\ As to the need for the particular standards that are
the subject of this decision, California is entrusted with the power to
select ``the best means to protect the health of its citizens and the
public welfare.'' \34\ CARB has repeatedly demonstrated the existence
of compelling and extraordinary conditions in California.\35\
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    \33\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
    \34\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess., 301-02 (1977)
(cited in MEMA I, 627 F.2d at 1110).
    \35\ CARB expressed its needs for its own emission control
program in both of the rulemakings at issue here. (``Be It Further
Resolved that the Board hereby finds that separate California
emission standards and test procedures are necessary to meet
compelling and extraordinary conditions.'' CARB Resolution 00-45 at
6 (December 7, 2000), CARB's Item 5; CARB Resolution 02-31 at 6
(December 12, 2002), CARB's Item 19.
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    EPA has not received any adverse comments to suggest that
California no longer suffers from serious and unique air pollution
problems. In its supplemental waiver request letter, CARB concluded
that ``California needs its own on-road engine and vehicle program to
meet serious air pollution problems unique to the State.'' \36\ EPA has
repeatedly declined to find fault in California's demonstrations of
``compelling and extraordinary conditions'' when waiving preemption for
motor vehicle emission standards under section 209(b) and authorization
for California's nonroad regulations under section 209(e) of the
CAA.\37\ Moreover, because EPA has not received adverse public comment
challenging California's need for its own mobile source pollution
control program or asserting any change from California's previous
demonstrations, I cannot deny the waiver based on a lack of

compelling and extraordinary conditions.
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    \36\ CARB's Supplemental Request Letter dated June 15, 2006 at
1.
    \37\ See, e.g., 41 FR 44209, 42213 (October 7, 1976); 49 FR
18887, 18892 (May 3, 1984). See also Final 209(e) Rule, 59 FR at
36982.
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C. Consistency with Section 202(a) of the Clean Air Act

    EPA has stated in the past that California standards and
accompanying test procedures would be inconsistent with section 202(a)
of the Clean Air Act if: (1) There is inadequate lead time to permit
the development of technology necessary to meet those requirements,
giving appropriate consideration to cost of compliance within the lead
time provided, or (2) the federal and California test procedures impose
inconsistent certification requirements.\38\
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    \38\ See, e.g., 75 FR 8056 (February 23, 2010); 70 FR 22034
(April 28, 2005).
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    The first prong of EPA's inquiry into consistency with section
202(a) of the Act depends upon technological feasibility. This requires
EPA to determine whether adequate technology already exists; or if it
does not, whether there is adequate time to develop and apply the
technology before the standards go into effect. CARB noted during its
rulemakings that the methods that can be used to meet the 2004-2005
standards consist of technologies that have already been developed in
response to federal emission standards. The technology changes that
were expected to occur as a result of the new regulations include:
Improved durability catalysts with increased precious metal loading,
optimization of the catalyst and fuel metering systems (including
improved fuel injection and heated oxygen sensors), increased use of
air injection and retarded spark ignition to control cold start
emissions, and improved exhaust gas recirculation for better
NOX control.\39\ Additionally, CARB notes that the
technological feasibility demonstrations for the exhaust emission
standards reflect the technological feasibility in EPA's own analysis
for the federal standards.\40\ CARB also relied on the federal findings
of technological feasibility for technologies that can be used to meet
the 2008 and beyond standards.\41\ EPA finds that CARB employed
appropriate projections of the feasibility of the technologies
necessary to meet both the 2004-2005 standards and the 2008 standards.
CARB's examination of the technological feasibility findings made by
EPA in the federal rulemaking along with subsequent technology
developments provide no basis upon which to find that CARB's standards
are not consistent with section 202(a) of the Act.
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    \39\ CARB Item 2 at 7-8.
    \40\ 65 FR 59896 (October 6, 2000).
    \41\ 66 FR 5002 (January 18, 2001), at pp. 5053 to 5055.
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    The second prong of EPA's inquiry into consistency with section
202(a) of the Act depends on the compatibility of the federal and
California test procedures. CARB points out that its certification
requirements are nearly identical to those adopted by EPA.\42\ In fact,
CARB found that beginning with the 2008 model year, California's test
procedures are identical to the federal test procedures for heavy-duty
gasoline engines and incomplete vehicles.\43\ EPA agrees with this
analysis and finds that one set of tests for a heavy-duty engine or
vehicle could be used to determine compliance with both California and
federal requirements. Therefore, we cannot find California's test
procedures to be inconsistent with our own.
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    \42\ Id. And Item 2 at pp. 7-8.
    \43\ CARB Request for Confirmation that Amendments Are Within
the Scope of Previous Waivers of Preemption Under Clean Air Act
Section 209(b), December 7, 2005 at 14.
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    For these reasons, I cannot deny the waiver based on a finding that
the 2000 and 2002 amendments are inconsistent with section 202(a) of
the Clean Air Act.

III. Decision

    EPA's analysis finds the criteria for granting a waiver of
preemption to be satisfied. The amendments require a new waiver of
preemption because ``new issues'' are presented by the establishment of
more stringent numerical standards in efforts to harmonize California
standards with federal standards. Upon evaluation, EPA has determined
that CARB has met the criteria for a waiver of preemption for the 2000
and 2002 amendments.
    The Administrator has delegated the authority to grant California a
section 209(b) waiver to enforce its own emission standards for on-road
engines to the Assistant Administrator for Air and Radiation. Having
given consideration to all the material submitted for this record, and
other relevant information, I find that I cannot make the
determinations required for a denial of a waiver pursuant to section
209(b) of the Act. Therefore, I grant a waiver of Clean Air Act
preemption to the State of California with respect to its heavy-duty
Otto-cycle engine and vehicle requirements as set forth above.
    My decision will affect not only persons in California but also
manufacturers outside the State who must comply with California's
requirements in order to produce engines for sale in California. For
this reason, I determine and find that this is a final action of
national applicability for purposes of section 307(b) (1) of the Act.
    Pursuant to section 307(b) (1) of the Act, judicial review of this
final action may be sought only in the United States Court of Appeals
for the District of Columbia Circuit. Petitions for review must be
filed by January 18, 2011. Judicial review of this final action may not
be obtained in subsequent enforcement proceedings, pursuant to section
307(b) (2) of the Act.
    In addition, this action is not a rule as defined in the Regulatory
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a
supporting regulatory flexibility analysis addressing the impact of
this action on small business entities.

    Dated: November 10, 2010.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2010-28971 Filed 11-16-10; 8:45 am]
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[Federal Register Volume 78, Number 8 (Friday, January 11, 2013)]
[Notices]
[Pages 2393-2394]
[FR Doc No: 2013-00408]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. EL13-30-000; QF03-76-003; QF03-80-003]

CAlifornians for Renewable Energy, Inc., Michael E. Boyd, Robert
M. Sarvey v. California Public Utilities Commission, Pacific Gas and
Electric Company, Contra Costa Generating Station LLC, for the Oakley
Generating Station; Notice of Petition for Enforcement

    Take notice that on December 27, 2012, pursuant to section
210(h)(2) of the Public Utility Regulatory Policies Act of 1978
(PURPA), CAlifornians for Renewable Energy, Inc.; Michael E. Boyd; and
Robert M. Sarvey filed a petition requesting the Federal Energy
Regulatory Commission (Commission) initiate an enforcement action
against Pacific Gas and Electric Company (PG&E); and Contra Costa
Generating Station LLC for the Oakley Generating Station.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive email
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call

(866) 208-3676 (toll free). For TTY, call<PHONE_NUMBER>.
    Comment Date: 5:00 p.m. Eastern Time on January 24, 2013.

    Dated: December 31, 2012.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2013-00408 Filed 1-10-13; 8:45 am]
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