On February 27, 2001, FSIS published a proposed rule “Performance Standards for the Production of Processed Meat and Poultry Products” (66 FR 12590). In that document, the Agency proposed food safety performance standards applicable to all ready-to-eat and all partially heat-treated meat and poultry products, as well as environmental testing requirements intended to reduce the incidence of Listeria monocytogenes in RTE meat and poultry products. FSIS also proposed to convert to performance standards the existing regulatory requirements for thermally-processed, commercially sterile (most often canned) meat and poultry products and to rescind certain requirements requiring the elimination of trichina from products that contain pork.

FSIS originally provided for a 90-day comment period on the proposed regulations ending on May 29, 2001. On April 13, 2001 (66 FR 19102), FSIS extended the comment period an additional 30 days, through June 28, 2001, to provide opportunity for the public to comment on issues raised at the technical conference and public meetings concerning the proposed regulations, which were held May 8 through 10, 2001. As of June 28, 2001, FSIS is reopening and again extending the comment period on the proposed regulations, this time until September 10, 2001.

On May 22, 2001, a consortium of trade associations representing the meat and poultry industries requested that FSIS extend the comment period for 120 days, until October 28, 2001. The consortium noted that FSIS has solicited a great deal of scientific and economic data regarding the proposed regulations and stated that it needed additional time to provide this data. The consortium also requested additional time to review the draft compliance guidance for the regulations, distributed by FSIS at the May 9 and 10 public meetings, as well as the draft risk assessment on the relationship between foodborne L. monocytogenes and human health developed by the Food and Drug Administration in cooperation with FSIS and the Centers for Disease Control and Prevention.

FSIS agrees that additional time is necessary for regulated industries, consumers, and other interested parties to submit comments, collect and submit the solicited data, and review the related draft compliance guidance and risk assessment documents. FSIS is reopening and extending the comment period until September 10, 2001, which will provide additional time for comments to be made, while ensuring that the rulemaking proceeds in a timely manner. As a result of this reopening and extension, the comment period for the proposed regulations will total 195 days.

On May 24, 1999, the IRS issued proposed regulations (REG-113910-98) in the Federal Register (64 FR 27936) under section 263A, that required that the historic absorption ratio used with either the simplified production or simplified resale methods be reviewed for accuracy. If the historic absorption ratio is found to be materially inaccurate, the ratio could no longer be used. The proposed regulations defined an historic absorption ratio as being materially inaccurate when (1) the taxpayer's actual absorption ratio deviates by more than 50 percent from the taxpayer's historic absorption ratio, (2) the taxpayer's actual absorption ratio deviates by more than one-half of one percentage point from the taxpayer's historic absorption ratio, and (3) the amount of additional section 263A costs capitalizable to items on hand at year-end using the actual absorption ratio deviates by more than $100,000 from the amount of additional section 263A costs capitalizable to items on hand at year-end using the historic absorption ratio. In response to the written comments received and the oral comments presented at a public hearing held on September 1, 1999, and based on an internal IRS survey, it has been determined that the potential for abuse using the current regulations' rule of reviewing a historic absorption ratio every six years is small. Further, this potential for abuse is outweighed by the burden that would be placed on taxpayers by requiring an annual review of the accuracy of their ratios. Accordingly, these proposed regulations are being withdrawn.

Accordingly, under the authority of 26 U.S.C. 7805, the notice of proposed rulemaking (REG-113910-98) that was published in the Federal Register on May 24, 1999 (64 FR 27936) is withdrawn.

Because OSHA's final recordkeeping rule was published on January 19, 2001, with an effective date of January 1, 2002, it was subject to the regulatory review required by the Andrew Card memorandum. The Agency has carefully considered the rulemaking record and the submissions of interested parties, and has had several meetings with business and labor representatives. As a result of this process, the Secretary has determined that the final recordkeeping rule should be implemented in large part, on January 1, 2002, as scheduled. The final rule is the result of an effort begun in the 1980s, involving businesses, labor organizations, health professionals and others, to improve the quality of the injury and illness records maintained under the Occupational Safety and Health Act. The new rule simplifies the recordkeeping process by making the record requirements more logical and coherent, by explaining the requirements in plain language, by consolidating the interpretations and guidance previously found in a host of secondary sources, and by providing new recordkeeping forms that are easier to understand and complete. However, the Agency's review has identified grounds for reconsidering two elements of the final rule, and for delaying the effective date of the requirements related to these elements, as explained below.

A. Recording occupational hearing loss cases: Section 1904.10 of the final rule requires employers to record, by checking the “hearing loss” column on the OSHA 300 Log (Log), a case in which an employee's hearing test (audiogram) reveals that a Standard Threshold Shift (STS) in hearing acuity has occurred. An STS is defined as “a change in hearing threshold, relative to the most recent audiogram for that employee, of an average of 10 decibels (dB) or more at 2000, 3000 and 4000 hertz in one or both ears.” Section 1904.10(b)(1). The final rule itself does not require testing of employees' hearing. However, OSHA's occupational noise standard (29 C.F.R. 1910.95) requires employers in general industry to conduct periodic audiometric testing of employees when employees' noise exposures are equal to, or more than, an 8-hour time-weighted average 85dB. If such testing reveals that an employee has sustained hearing loss equal to an STS, the employer must take protective measures, including requiring the use of hearing protectors, to prevent further hearing loss.

The current recordkeeping rule, which remains in effect until January 1, 2002, contained no specific threshold for recording hearing loss cases. In 1991, OSHA issued an enforcement policy on the criteria for recording occupational hearing loss, to remain in effect until new criteria were established by rulemaking. The 1991 policy stated that OSHA would cite employers for failing to record work related shifts in hearing of an average of 25dB or more at 2000, 3000, and 4000 Hertz in either ear.

One of the major issues in the recordkeeping rulemaking was to quantify the level of hearing loss that should be recorded as a “significant” health condition. This was critical because OSHA determined that minor or insignificant health conditions should no longer be recordable. See, e.g., 66 FR 5931. OSHA proposed a requirement to record hearing loss averaging 15dB at 2000, 3000 and 4000 Hertz in one or both ears. The agency asked for comment on several alternative criteria, including, 10, 20 and 25dB. The final rule used the STS criterion of 10dB instead of the proposed 15dB level.

In selecting an STS as the appropriate criterion for recording hearing loss, OSHA relied heavily on evidence submitted by the Coalition to Preserve OSHA and NIOSH and Protect Workers' Hearing that a 10dB loss in hearing acuity represents a serious health problem. “OSHA [was] particularly persuaded by the Coalition's argument that ‘An age-corrected STS is a large hearing change that can affect communicative competence’ because an age-corrected STS represents a significant amount of cumulative hearing change from baseline hearing levels.” 66 FR 6008. Based on this and other evidence, OSHA found that an STS “represents a non-minor injury or illness of the type Congress identified as appropriate for recordkeeping purposes.” 66 FR 6009.

Following publication of the final rule in January 2001, OSHA received submissions from interested parties criticizing the finding that an STS represents a significant health condition. Exhibits 1-2, 1-3, 1-4, 1-5, 1-6, 1-7. These parties argue that an STS is not necessarily considered a serious health problem by the medical community, by State workers compensation systems, or by the occupational noise standard (29 CFR 1910.95). The American Iron and Steel Institute noted that, “According to the AMA, a person has suffered material impairment when testing reveals a 25dB average hearing loss from audiometric zero at 500, 1000, 2000, and 3000 hertz.” AISI and other commenters assert that an STS is merely a precursor event indicating the need for follow-up actions, not a material health impairment standing alone.

OSHA has reviewed the record and agrees that reconsideration of the criteria for recording hearing loss is warranted. There is evidence in the record suggesting that an STS can constitute a serious health problem for individuals with pre-existing hearing loss. See 66 FR 6008 (“For an individual with pre-existing high frequency hearing loss on the baseline, STS usually involves substantial progression into the critical speech frequencies.”) There is also evidence that an STS is not necessarily a serious condition, and some commenters have questioned whether it is even a reliable criterion under real-world testing conditions. See, e.g., Exhibit 1-2. Finally, NIOSH notes in its Criteria for a Recommended Standard—Noise Exposure, “the incipient permanent threshold shift may manifest itself with the same order of magnitude as typical audiometric measurement variability; about a 10-dB change in hearing thresholds.” In view of this uncertainty, OSHA believes that the record should be reopened to permit consideration of additional medical and other relevant evidence, and to explore alternative approaches. For example, Organization Resources Counselors, Inc. (ORC) in its post-promulgation submissions urged the Agency to consider a sliding scale which would take account of an individual's existing level of impairment in determining whether further occupational hearing loss warrants recording. (Exhibits 1-6, 1-7). ORC's suggested approach, which was not addressed in the rulemaking, also deserves careful consideration.

In light of the decision to reconsider the 10dB criterion, OSHA is proposing to delay the effective date of Section 1904.10 until January 1, 2003, and to remove the “Hearing loss” column from the version of the Log to be used during calendar year 2002. OSHA believes that this proposed action is appropriate for several reasons. If OSHA decides to change the hearing loss criterion beginning in 2003, records of hearing loss cases based on the 10dB level for 2002 will be of little value since they could not be compared to records maintained either under the former rule's 25dB level or any new level effective in 2003. On the other hand, continuing the 25dB recording requirement for 2002 will yield data comparable to that for earlier years even if OSHA implements a new requirement for 2003. Furthermore, the proposed delay of the effective date would avoid the confusion and additional paperwork burden that would result if employers were required to implement the 10dB requirement for 2002, only to change over to a new requirement in 2003. These factors appear to outweigh any potential benefit to be gained by permitting Section 1904.10 to become effective while OSHA is reconsidering the 10dB criterion. If implementation of Section 1904.10 is delayed as proposed in this document, OSHA will provide new forms to be used for calendar year 2002 that do not contain a “Hearing loss” column.

B. Defining an MSD and checking the MSD column: Section 1904.12 of the final rule states that if an employee experiences a recordable musculoskeletal disorder (MSD), the employer must record it on the OSHA Log and must check the MSD column. For recordkeeping purposes, the rule defines MSDs as disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs that are not caused by slips, trips, falls, motor vehicle accidents or other similar accidents (see Section 1904.12(b)(1)). The Section also explains that in determining whether an MSD is recordable, the employer must use the same criteria that apply to other injuries or illnesses. To be recordable, the disorder must be work-related, must be a new case, and must meet one or more of the general recording criteria. Section 1904.12(b)(2) states that “[t]here are no special criteria for determining which musculoskeletal disorders to record,” and refers the reader to other sections of the rule in which the basic recording criteria are found.

OSHA's purpose in including an MSD column on the Log was to gather data on “musculoskeletal disorders” as that term is defined in Section 1904.12. Following Congressional disapproval of OSHA's ergonomics standard (PL 107.5, Mar. 20, 2001), the Secretary announced that she intends to develop a comprehensive plan to address ergonomic hazards and scheduled a series of forums to consider basic issues related to ergonomics (66 FR 31694, 66 FR 33578). One of the key issues to be considered in connection with the Secretary's comprehensive plan is the approach to defining an ergonomic injury.

Based on these developments, the Secretary believes that it is premature to define an MSD for recordkeeping purposes. Any definition of “musculoskeletal disorder” or other term for soft tissue injuries in the recordkeeping rule should be informed by the views of business, labor and the public health community on the problem of ergonomic hazards in the workplace, which the Secretary's forums are intended to elicit. Furthermore, to require employers to implement a new definition of MSD while the Agency is considering the issue in connection with the comprehensive ergonomics plan could create unnecessary confusion and uncertainty. Therefore, OSHA is proposing to delay the effective date of § 1904.12. Accordingly, the Log to be used for calendar year 2002 would not contain a definition for MSD or an MSD column. When the Department has progressed further in developing its comprehensive approach to ergonomic hazards, it will be in a better position to consider how employers will be required to report work-related ergonomics injuries.

This proposed action does not affect the employer's obligation to record all injuries and illnesses that meet the criteria set out in Sections 1904.4-1904.7, regardless of whether a particular injury or illness meets the definition of MSD found in Section 1904.12. Employers will be required to record soft-tissue disorders, including those involving subjective symptoms such as pain, as injuries or illnesses if they meet the general recording criteria that apply to all injuries and illnesses. The proposed delay of the effective date of Section 1904.12 does not affect this basic requirement. It simply means that employers will not have to determine which injuries should be classified under the category of “MSDs” or “ergonomic injuries” during the calendar year 2002.

A one-year delay of the effective date of the specified recordkeeping provisions would have the following effect on an employer's recordkeeping obligations during the 2002 calendar year:

Hearing loss cases: Employers would continue to record work-related shifts of an average of 25 dB or more at 2000, 3000, and 4000 hertz (Hz) in either ear on the OSHA 300 Log. When a recordable hearing loss occurs, the audiogram indicating the hearing loss would become the new baseline for determining whether future additional hearing loss by the individual must be recorded. Employers would check either the “injury” or the “all other illness”column, as appropriate.

Soft-tissue disorder: Employers would record disorders affecting the muscles, nerves, tendons, ligaments and other soft tissue areas of the body in accordance with the general criteria in Sections 1904.4-1904.7 applicable to any injury or illness. Employers would also treat the symptoms of soft-tissue disorders the same as symptoms of any other injury or illness. Soft-tissue cases would be recordable only if they are work-related (Sec. 1904.5), are a new case (Sec. 1904.6), and meet one or more of the general recording criteria (Sec. 1904.7). Employers would check either the “injury” or the “all other illness” column, as appropriate.

OSHA particularly invites comment on the following issues. Issue 1. What is the appropriate criterion for recording cases of occupational hearing loss? OSHA is particularly interested in comments on the advantages and disadvantages of various hearing loss levels, including 10, 15, 20 and 25 dB, on alternative approaches such as the use of a sliding scale in which smaller incremental shifts would be recordable for employees with significant pre-existing hearing loss, and on the frequency of “false positive” results or other errors in audiometric measurements associated with each of these levels and approaches. Issue 2. What is the variability of audiometric testing equipment and how should this variability be taken into account, if at all, in the recordkeeping rule? Issue 3. What is the appropriate benchmark against which to measure hearing loss, e.g., the employee's baseline audiogram, audiometric zero, or some other measure? Issue 4. Should the recordkeeping rule treat subsequent hearing losses in the same employee as a new case for recording purposes?

On January 22, 2001, the Office of Management and Budget (OMB) received OSHA's request under the Paperwork Reduction Act of 1995 for approval of the information collection requirements in the final recordkeeping rule. This request for approval was withdrawn by the Agency on March 26, 2001, before OMB acted on it. OSHA will resubmit a request for OMB approval of the information collection requirements in the final rule, including appropriate changes in such requirements resulting from this proposal.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), the Acting Assistant Secretary certifies that the proposed rule will not have a significant adverse impact on a substantial number of small entities.

This document has been deemed significant under Executive Order 12866 and has been reviewed by OMB.

This document was prepared under the direction of R. Davis Layne, Acting Assistant Secretary for Occupational Safety and Health. It is issued under Section 8 of the Occupational Safety and Health Act (29 U.S.C. 657), and 5 U.S.C. 553.

This Supplementary Information section is organized as follows:

In this action, under the authority of CAA section 112(l)(5) and 40 CFR 63.91, EPA proposes approval of Ecology's request, and the requests of BCAA, OAPCA, SCAPCA and YRCAA, for program approval and delegation of authority to implement and enforce specific 40 CFR parts 61 and 63 subparts, as listed in the tables at the end of this rule. Along with these specific standards, EPA proposes to delegate certain General Provisions authorities, as explained below. EPA proposes to delegate this authority to Ecology for the purpose of direct implementation (within Ecology's jurisdiction). EPA also proposes to delegate this authority to BCAA, OAPCA, SCAPCA and YRCAA.

In this action, EPA proposes to waive its notification requirements such that sources within Ecology and SCAPCA's jurisdictions would only need to send notifications and reports to Ecology or SCAPCA, and would not need to send a copy to EPA, Region X. (Sources within BCAA, OAPCA or YRCAA's jurisdictions would need to continue sending notifications to both the respective agency and EPA, Region X).

Under the authority of CAA section 112(l)(5) and 40 CFR 63.91, EPA is also proposing approval of Ecology and the four locals agencies' mechanism for streamlining future delegation of those federal NESHAP regulations that are adopted unchanged into state and local laws. This mechanism is explained in a separate paragraph below.

Delegation to the remaining local agencies in the State of Washington (the Northwest Air Pollution Authority (NWAPA), the Puget Sound Clean Air Agency (Puget Sound Clean Air), and the Southwest Air Pollution Control Authority (SWAPCA)) was promulgated in a direct final rule on December 1, 1998 ( see 63 FR 66054) and became effective on February 1, 1999. A correction and clarification to that direct final rule was published on February 17, 1999 ( see 64 FR 7793). Additionally, amendments updating this delegation were published on April 22, 1999 ( see 64 FR 19719) and February 28, 2000 ( see 65 FR 10391). Therefore, this action will not apply to NWAPA, Puget Sound Clean Air, or SWAPCA.

EPA is proposing this action because it has determined that these agencies have met the following criteria for approval:

(1) The state or local program is “no less stringent” than the corresponding federal program or rule;

(2) The State or local has adequate authority and resources to implement the program;

(3) The schedule for implementation and compliance is sufficiently expeditious; and

(4) The program is otherwise in compliance with federal guidance.

If EPA approves this proposal, Ecology and the four local agencies will have primary implementation and enforcement responsibility for the adopted NESHAP regulations. This means that if approved, sources subject to the delegated standards would send notifications and reports to these agencies (and send a copy to EPA, Region 10, except for those sources within Ecology and SCAPCA's jurisdictions). Questions and compliance issues would also be directed to these agencies. As with any delegation, however, EPA retains the right, pursuant to CAA section 112(l)(7), to enforce any applicable emission standard or requirement under CAA section 112. Additionally, if approved, EPA would retain certain General Provisions authorities, as explained below.

EPA proposes to delegate certain 40 CFR parts 61 and 63 NESHAPs in effect on July 1, 2000, as adopted by reference into WAC 173-400-075 on November 22, 2000. In most cases, this delegation would apply to all sources (exceptions are explained below). The standards to be delegated are specified in the tables at the end of this rule.

EPA agrees with the position of the Office of the Attorney General of Washington's office that the November 22, 2000 revision to WAC 173-400-075(5)(a) adopts as state rules those parts of Part 63 that EPA proposes to delegate. A revision to the state rule, which will clarify the provision, is currently being processed by the State.

EPA proposes to delegate 40 CFR part 61, subpart M (Asbestos NESHAP) to Ecology, BCAA, and OAPCA as it applies to major sources only, based on their requests. Also, EPA proposes to delegate 40 CFR part 63, subpart M (Perchloroethylene Dry Cleaning NESHAP) to Ecology and YRCAA as it applies to major sources only.

Also, Ecology has a working relationship with BCAA to manage the Asbestos NESHAP for sources located on the Hanford Nuclear Reservation. Ecology retains enforcement authority for the Asbestos NESHAP consistent with RCW 70.105.240. EPA acknowledges this managerial relationship between Ecology and BCAA concerning the Asbestos NESHAP since both agencies are delegated the authority to implement this program. However, EPA asserts that Ecology retains enforcement authority for sources located on the Hanford Nuclear Reservation because Ecology is the enforcing agency.

EPA proposes not to delegate to Ecology and the four local agencies any 40 CFR part 61, subparts pertaining to radon or radionuclides. Typically, EPA delegates all standards adopted (and requested) by an air agency and in effect as of a certain date, regardless of whether or not there are any applicable sources within that agency's jurisdiction. As an exception, EPA proposes not to delegate the 40 CFR part 61, subparts pertaining to radon or radionuclides which includes: subparts B, H, I, K, Q, R, T, and W. EPA has determined that there are either no sources in these agencies' jurisdictions (and that no new sources are likely to emerge), or if there are sources, the agency does not have sufficient expertise to implement these NESHAPs.

The State Department of Health is currently implementing 40 CFR part 61, subparts H and I as the state radionuclide standards for the State of Washington. The State Department of Health had received interim delegation for these two radionuclide standards (as they pertain to part 70 sources only) on August 2, 1995 ( see 60 FR 39263). However, this interim delegation lapsed on November 9, 1996, because the State had not received full approval of the Washington Title V operating permits program. ( see 60 FR 39264). Therefore, EPA is currently responsible for federal implementation of 40 CFR part 61, subparts H and I. (Note: EPA recently received a request from the Department of Health for delegation of federal radionuclide standards at 40 CFR part 61, subparts H and I. EPA is evaluating this request.)

Additionally, EPA is not proposing delegation of the regulations implementing CAA sections 112(g) and 112(j), codified at 40 CFR part 63, subpart B, to Ecology and the four local agencies. EPA recognizes that subpart B need not be delegated under the section 112(l) approval process. When promulgating the regulations implementing CAA section 112(g), EPA stated its view that “the Act directly confers on the permitting authority the obligation to implement section 112(g) and to adopt a program which conforms to the requirements of this rule. Therefore, the permitting authority need not apply for approval under section 112(l) in order to use its own program to implement section 112(g)” ( see 61 FR 68397). Similarly, when promulgating the regulations implementing section 112(j), EPA stated its belief that “section 112(l) approvals do not have a great deal of overlap with the section 112(j) provision, because section 112(j) is designed to use the Title V permit process as the primary vehicle for establishing requirements” ( see 59 FR 26447). Therefore, state or local agencies implementing the requirements under sections 112(g) and 112(j) do not need approval under section 112(l).

In a memorandum from John Seitz, Office of Air Quality Planning and Standards, dated July 10, 1998, entitled, “Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies,” EPA clarified which of the authorities in the General Provisions may and may not be delegated to state and local agencies under 40 CFR part 63, subpart E. Based on this memo, EPA proposes to delegate the part 63, subpart A, sections that are listed below. Delegation of these General Provisions Authorities would enable Ecology and the four local agencies to carry out the Administrator's responsibilities in these sections of subpart A. In delegating these authorities, EPA would be granting Ecology and the four local agencies the authority to make decisions which are not likely to be nationally significant or to alter the stringency of the underlying standard. The intent is that these agencies would make decisions on a source-by-source basis, not on a source category-wide basis.

In delegating 40 CFR 63.9 and 63.10, “Approval of Adjustments to Time Periods for Submitting Reports,” these agencies would have the authority to approve adjustments to the timing that reports are due, but would not have the authority to alter the contents of the reports. For Title V sources, semiannual and annual reports are required by part 70 and nothing herein would change that requirement.

Certain General Provisions authorities are automatically granted to Ecology and the four local agencies as part of their part 70 operating permits program approval (regardless of whether the operating permits program approval is interim or final). These are 40 CFR 63.6(i)(1), “Extension of Compliance with Emission Standards,” and 63.5(e) and (f), “Approval and Disapproval of Construction and Reconstruction.”  1 Additionally, for 40 CFR 63.6(i)(1), Ecology and the four local agencies do not need to have been delegated a particular standard or have issued a part 70 operating permit for a particular source to grant that source a compliance extension. However, Ecology or the local agency must have authority to implement and enforce the particular standard against the source in order to grant that source a compliance extension.

In general, EPA does not delegate any authorities that require implementation through rulemaking in the Federal Register , or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112. Listed in the footnotes of the parts 61 and 63 delegation tables at the end of this rule are the specific authorities which cannot be delegated to any state or local agency; which EPA therefore would retain. 2

After a state or local agency has been delegated the authority to implement and enforce a NESHAP, the delegated agency (in this case, Ecology and the four locals) becomes the primary point of contact with respect to that NESHAP. Therefore, if EPA approves this proposal, regulated facilities would direct questions and compliance issues to these agencies. Additionally, all pending questions and compliance issues, even those which may currently be under consideration by EPA, will be resolved by Ecology or the appropriate local agency.

If this proposal is approved, facilities within BCAA, OAPCA or YRCAA's jurisdictions would need to submit notifications directly to the respective agency, and also send a copy to EPA, Region X.

Pursuant to 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii), EPA, Region X, proposes to waive the requirement for sources to submit notifications to both Ecology or SCAPCA and EPA, Region X. If approved, facilities within Ecology and SCAPCA's jurisdictions would need to submit notifications and reports directly to Ecology or SCAPCA, and would not need to send a copy to EPA, Region X.

The delegation proposed for Ecology and the four local agencies to implement and enforce NESHAPs would not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151. “Indian country” is defined under 18 U.S.C. 1151 as: (1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (2) all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (3) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Under this definition, EPA treats as reservations trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. Consistent with previous federal program approvals or delegations, EPA will continue to implement the NESHAPs in Indian country because these agencies did not adequately demonstrate their authority over sources and activities located within the exterior boundaries of Indian reservations and other areas in Indian country.

In delegating the authority to implement and enforce these rules, EPA would require that these delegated agencies submit to EPA the following information:

(1) These agencies must input all source information into the Aerometric Information Retrieval System (AIRS) for both point and area sources. The agencies must enter the information into the AIRS system by September 30 of each year;

(2) These agencies must also report to EPA, Region X, all MACTRAX information upon request, which is typically semiannually. (MACTRAX provides summary data for each implemented NESHAP that EPA uses to evaluate the Air Toxics Program);

(3) These agencies must also provide any additional compliance related information to EPA, Region X, as agreed upon in the Compliance Assurance Agreement;

(4) In receiving delegation for specific General Provisions authorities, these agencies must submit to EPA, Region X, copies of determinations issued pursuant to these authorities (which are listed in the table above);

(5) These agencies must also forward to EPA, Region X, copies of any notifications received pursuant to § 63.6(h)(7)(ii) pertaining to the use of a continuous opacity monitoring system; and

(6) These agencies must submit to EPA's Emission Measurement Center of the Emissions Monitoring and Analysis Division copies of any approved intermediate changes to test methods or monitoring. (For definitions of major, intermediate and minor alternative test methods or monitoring methods, see the July 10, 1998, memorandum from John Seitz, referenced above). These intermediate test methods or monitoring changes should be sent via mail or facsimile to: Chief, Source Categorization Group A, U.S. EPA (MD-19), Research Triangle Park, NC 27711, Facsimile telephone number: (919) 541-1039.

If this proposed delegation is approved, Ecology or a local agency would receive delegation of future standards by the following process:

(1) Ecology or the local agency will send a letter to EPA requesting delegation for future NESHAP standards adopted by reference into state regulations;

(2) EPA will send a letter of response back to Ecology or the local agency granting this delegation request (or explaining why EPA cannot grant the request);

(3) Ecology or the local agency does not need to send a response back to EPA;

(4) If EPA does not receive a negative response from Ecology or the local agency within 10 days of EPA's letter to Ecology or the local agency, then the delegation will be final 10 days after the date of the letter from EPA; and

(5) Periodically, EPA will publish a notice in the Federal Register informing the public of the updated delegation.

Ecology and the four local agencies should update their incorporations by reference of 40 CFR parts 61 and 63 standards and request updated delegation annually, as current standards are revised and new standards are promulgated.

EPA is seeking comment on its proposal to grant Ecology and the four local agencies the authority to implement and enforce certain 40 CFR parts 61 and 63 NESHAPs. EPA will consider all public comments submitted during the public comment period. Issues raised by the comments will be carefully reviewed and considered in the decision to approve or disapprove Ecology's request. EPA will provide notice of its final decision in the Federal Register , including a summary of the reasons for the final decision and a summary of all major comments.

Please note that the public was provided the opportunity to comment on the proposed interim approval of Ecology and the four locals' delegation request for certain 40 CFR part 61 standards, as they apply to part 70 sources, on February 16, 1996 ( see 61 FR 6184). EPA received public comments on that proposal and responded to them in the August 26, 1996, Federal Register ( see 61 FR 43675). The public has not been given an opportunity to comment on requests submitted since the February 16, 1996, Federal Register , on delegation of 40 CFR part 61 standards as they apply to non-part 70 sources, and on delegation of 40 CFR part 63 standards as they apply to both part 70 and non-part 70 sources. That is why EPA is requesting comments at this time.

Section 112(l) of the federal Clean Air Act (CAA) enables the EPA to approve state and local air toxics programs or rules to operate in place of the federal air toxics program or rules. The federal air toxics program implements the requirements found in section 112 of the CAA pertaining to the regulation of hazardous air pollutants. Approval of an air toxics program is granted by EPA if the Agency finds that:

(1) the state (or local) program is “no less stringent” than the corresponding federal program or rule,

(2) the State (or local) has adequate authority and resources to implement the program,

(3) the schedule for implementation and compliance is sufficiently expeditious, and

(4) the program is otherwise in compliance with federal guidance.

Once approval is granted, the air toxics program can be implemented and enforced by state or local agencies, as well as EPA.

On February 16, 1996 ( see 61 FR 6184), EPA proposed to approve the request of Ecology and the Washington local agencies, including BCAA, OAPCA, SCAPCA and YRCAA, for delegation of authority to implement and enforce certain 40 CFR part 61 NESHAP rules, as they apply to part 70 sources. On August 26, 1996 ( see 61 FR 43675), under the authority of CAA section 112(l)(5) and 40 CFR 63.91, EPA promulgated final interim approval of this request. EPA also promulgated interim approval of a mechanism for Ecology and the four locals to receive future delegation of CAA section 112 standards that are adopted unchanged from federal standards as promulgated.

In the August 26, 1996, rulemaking, EPA granted only interim approval of the request for delegation because EPA determined that the criminal authorities under Ecology's statute, RCW 70.94.430, did not meet the stringency requirements of 40 CFR 70.11. In this respect, EPA retained implementation and enforcement authority for these rules as they applied to non-part 70 sources during the interim period or until such time as Ecology and the local agencies could demonstrate that their criminal authorities met EPA stringency requirements. Full approval has been contingent upon a demonstration that Ecology and the local agencies' criminal enforcement authorities are consistent with the requirements of 40 CFR 70.11(a), and therefore 40 CFR 63.91(b)(1) and (b)(6). Specifically, in the proposed interim approval notice ( see 61 FR 6184), EPA requested the following of Ecology and the local agencies:

(1) Revise RCW 70.94.430 to provide for maximum criminal penalties of not less than $10,000 per day per violation, as required by 40 CFR 70.11(a)(3)(ii).

(2) Revise RCW 70.94.430 to allow the imposition of criminal penalties against any person who knowingly makes any false material statement, representation or certification in any form, in any notice or report required by a permit, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation, and

(3) Revise RCW 70.94.430 to allow the imposition of criminal penalties against any person who knowingly renders inaccurate any required monitoring device or method, as required by 40 CFR 70.11(a)(3)(iii). This provision must include maximum penalties of not less than $10,000 per day per violation, or

(4) Demonstrate to the satisfaction of EPA that these authorities are consistent with 40 CFR 70.11, and therefore 40 CFR 63.91.

In response to EPA's request, Ecology submitted a letter dated October 7, 1996, that addressed these issues. This documentation included a legal memorandum from the Attorney General of Washington's office dated May 23, 1996, explaining how the statutory authority in RCW 70.94.430(1) may be interpreted to provide the required authority, which satisfied condition 1. In addition, Ecology amended the state regulation at Washington Administrative Code (WAC) 173-400-105(7) and (8) to include prohibitions against knowingly making false statements and knowingly rendering inaccurate any monitoring device, thus satisfying requirements 2 and 3. Furthermore, in a letter dated February 28, 1997, Ecology provided supporting documentation from BCAA, SCAPCA, and OAPCA describing how they each have addressed these issues. In a letter dated May 5, 1997, Ecology provided supporting documentation from YRCAA describing how it has addressed these issues. Ecology also updated SCAPCA and OAPCA's supporting documentation in letters dated June 4, 1997, and October 27, 1997, respectively. All four local agencies committed to enforcing WAC 173-400-105(7) and (8) until such time as they might adopt their own equivalent regulations on this subject. Based on information provided by Ecology and the four locals, EPA has determined that these actions adequately address the issue of adequate criminal authorities needed to meet the requirements of 40 CFR 63.91 and 70.11, and to obtain final delegation for all sources within Ecology and the four locals' jurisdiction.

After resolving the above issues related to criminal authorities, this delegation was again delayed due to certain state regulations which EPA believed conflicted with the enforcement authorities required for delegation of federal programs. The Regulatory Reform Act of 1995 (“Act”), codified at Chapter 43.05 RCW precludes “regulatory agencies,” as defined in RCW 43.05.010, from assessing civil penalties except for a violation of a specific permit term or condition; a repeat violation; a violation that is not corrected within a reasonable period of time; or a violation that has a probability of placing a person in danger of death or bodily harm, a probability of causing more than minor environmental harm, or of causing physical damage to the property of another in excess of one thousand dollars. Counsel for Puget Sound Clean Air has provided EPA with a legal opinion stating that the Act does not apply to local air pollution control authorities in Washington because local air pollution control authorities are not “regulatory agencies” within the meaning of the Act. EPA has reviewed the statutory and regulatory language relied on by Puget Sound Clean Air's counsel in reaching this conclusion and agrees that the Act does not constrain the enforcement authority of local air pollution control authorities and therefore does not pose a bar to delegation of CAA programs to local air pollution control agencies in Washington. As for the Act's applicability to Ecology's enforcement authorities, in letters dated June 10, 1997, and November 20, 1997, EPA advised Ecology that the Act conflicted with the necessary enforcement authority required for authorization or approval of federal environmental programs to Ecology. Subsequently, on December 10, 1997, in accordance with RCW 43.05.902, Ecology formally notified the Governor of Washington that a conflict existed between the Act and the requirements for State authorization or approval of certain federal environmental programs. As a result of the determination of an existing conflict, RCW 43.05.040, .050, .060(3), and .070, which prohibit the State from issuing civil penalties except under certain circumstances, were deemed to be inoperative to several State environmental programs administered by the Department of Ecology, including the CAA program. In reliance on this determination, EPA believes that the conflict between the Act and the requirements for EPA approval of Ecology's CAA programs has been addressed by rendering inoperative those portions of the Act that conflicted with Ecology's required enforcement authorities.

Since the August 26, 1996, rulemaking, Ecology has submitted several updated delegation requests on behalf of itself and the four local agencies to reflect the adoption of revised or newly promulgated federal standards. Based on these updated requests, Ecology and the four locals' current request includes certain subparts in 40 CFR parts 61 and 63 in effect on July 1, 2000, as adopted by reference into WAC 173-400-075 on November 22, 2000, as they apply to all sources. Two exceptions to this are: (1) Ecology, BCAA, and OAPCA, have requested the Asbestos NESHAP for part 70 sources only; and (2) Ecology has requested the Perchloroethylene Dry Cleaning NESHAP for part 70 sources only, as is allowed by their rule.

Both Ecology and SCAPCA have requested that EPA waive the part General Provisions notification requirements, in accordance with 40 CFR 63.9 and 63.10, such that sources would not need to send notifications and reports to EPA, Region X. Ecology submitted these requests in its letter dated November 1, 1999, and SCAPCA submitted a request in a letter dated March 3, 1997. Ecology and SCAPCA prefer to be the sole recipient of notifications and reports to reduce the burden on sources and EPA. By this action, EPA, Region X is waiving the notification and reporting requirements in accordance with 40 CFR 63.9 and 63.10, such that sources only need to provide notification and reports to Ecology or SCAPCA, and would not need to send notifications and reports to EPA, Region X.

In addition, Ecology and SCAPCA clarified to EPA, Region X that they seek delegation of the reporting requirements of 40 CFR 61.10 such that sources covered by this provision need only send reports to Ecology or SCAPCA and not to EPA. By this action, EPA is delegating the reporting requirements of 40 CFR 61.10 to Ecology and SCAPCA, and sources only need to provide the reports under that section to Ecology or SCAPCA.

Ecology also requested approval of Ecology's state regulation at WAC 173-400-091 to recognize this regulation as federally enforceable for purposes of establishing potential-to-emit limitations. EPA is not taking action on this request because this regulation has already received federal approval in a final Federal Register rule dated June 2, 1995 (see 60 FR 28726).

Pursuant to the authority of CAA section 112(l) of the Act and 40 CFR part 63, subpart E, EPA is proposing to approve Ecology's request, and the requests of BCAA, OAPCA, SCAPCA and YRCAA, for program approval and delegation of authority to implement and enforce specific 40 CFR parts 61 and 63 Federal NESHAP regulations (as they apply to both part 70 and non-part 70 sources) which have been adopted into state law. EPA is proposing to delegate this authority to Ecology for the purpose of direct implementation (within Ecology's jurisdiction). EPA is also proposing to delegate this authority to BCAA, OAPCA, SCAPCA and YRCAA. Additionally, EPA proposes to approve the mechanism by which Ecology and the four local agencies will receive delegation of future NESHAP regulations that are adopted unchanged into state law; and also proposes to waive the requirement for sources within Ecology and SCAPCA's jurisdictions to send copies of notifications and reports to EPA.

The Office of Management and Budget (OMB) has exempted this regulatory action from review under Executive Order 12866, entitled “Regulatory Planning and Review.”

This rule is not subject to Executive Order 13045, entitled, “Protection of Children from Environmental Health Risks and Safety Risks,” because it is not an “economically significant” action under Executive Order 12866.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a State program and rules implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, Executive Order 13132 does not apply to this rule.

Although section 6 of the Executive Order does not apply to this rule, EPA did consult with representatives of State and local governments in developing this rule, and this rule is in response to the State's and local's delegation request.

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

This rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 600 et seq. , EPA must prepare a regulatory flexibility analysis assessing the impact of any rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small government entities with jurisdiction over populations of less than 50,000.

Delegation of authority to implement and enforce unchanged federal standards under section 112(l) of the CAA does not create any new requirements but simply transfers primary implementation authorities to the State (or local) agency. Therefore, because this action does not impose any new requirements, I certify that it does not have a significant impact on any small entities affected.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated annual costs to State, local, or tribal governments in the aggregate, or to private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the delegation action promulgated does not include a Federal mandate that may result in estimated annual costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new Federal requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major” rule as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 4, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements ( see section 307(b)(2)).

Title 40, chapter I, parts 61 and 63 of the Code of Federal Regulations is proposed to be amended as follows:

This document concerns NESHAP: Standards for Hazardous Air Pollutants for Hazardous Waste Combustors. For further information, please see the information provided in the direct final action that is located in the “Rules and Regulations” section of this Federal Register publication.

You may submit comments electronically by sending electronic mail through the Internet to: rcra-docket@epamail.epa.gov. You should identify comments in electronic format with the docket number F-2001-RC4P-FFFFF. You must submit all electronic comments as an ASCII (text) file, avoiding the use of special characters or any type of encryption. The official record for this action will be kept in the paper form. Accordingly, we will transfer all comments received electronically into paper form and place them in the official record which will also include all comments submitted directly in writing. The official record is the paper record maintained at the RIC as described above. We may seek clarification of electronic comments that are garbled in transmission or during conversion to paper form.

You should not electronically submit any confidential business information (CBI). You must submit an original and two copies of CBI under separate cover to: RCRA CBI Document Control Officer, Office of Solid Waste (5305W), U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.

If you do not submit comments electronically, we are asking prospective commenters to voluntarily submit one additional copy of their comments on labeled personal computer diskettes in ASCII (text) format or a word processing format that can be converted to ASCII (text). It is essential that you specify on the disk label the word processing software and version/edition as well as the commenter's name. This will allow us to convert the comments into one of the word processing formats used by the Agency. Please use mailing envelopes designed to protect the diskettes. We emphasize that submission of diskettes is not mandatory, nor will it result in any advantage or disadvantage to any commenter.

Today's notice proposes specific changes to the NESHAP: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors (Phase I) rule, published September 30, 1999 (64 FR 52828). After promulgation, commenters (primarily the regulated community) raised numerous issues through informal comments and during litigation settlement discussions. After considering the issues raised, we have decided to propose for comment a limited number of changes to the Phase I final rule, most of the proposed changes relating to compliance and implementation of the rule.

In the “Rules and Regulations” section of the Federal Register , we are amending the September 30, 1999 final rule without prior proposal to incorporate these revisions because we view the amendments as noncontroversial and anticipate no adverse comment. We have explained our reasons for this approach in the preamble to the direct final rule, and do not believe it necessary to repeat those discussions here. If we receive adverse comment on a distinct amendment, we will withdraw the direct final action for that amendment and the amendment will not take effect. We will address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on any amendment must do so at this time.

For further information, please see the “Rules and Regulations” section of today's Federal Register publication.

In developing this rule, we tried to address the concerns of all our stakeholders. Your comments will help us improve this rule. We invite you to provide different views on options we propose, new approaches we haven't considered, new data, how this rule may effect you, or other relevant information. We welcome your views on all aspects of this rule. Your comments will be most effective if you follow the suggestions below:

• Explain your views as clearly as possible and why you feel that way.

• Provide solid technical and cost data to support your views.

• If you estimate potential costs, explain how you arrived at the estimate.

• Tell us which parts you support, as well as those you disagree with.

• Provide specific examples to illustrate your concerns. Offer specific alternatives.

• Refer your comments to specific sections of the proposal, such as the units or page numbers of the preamble, or the regulatory sections.

• Make sure to submit your comments by the deadline in this notice.

• Be sure to include the name, date, and docket number with your comments.

You may submit comments electronically by sending electronic mail through the Internet to: rcra-docket@epamail.epa.gov. You should identify comments in electronic format with the docket number F-2001-RC5P-FFFFF. You must submit all electronic comments as an ASCII (text) file, avoiding the use of special characters or any type of encryption. The official record for this action will be kept in the paper form. Accordingly, we will transfer all comments received electronically into paper form and place them in the official record which will also include all comments submitted directly in writing. The official record is the paper record maintained at the RIC as described above. We may seek clarification of electronic comments that are garbled in transmission or during conversion to paper form.

You should not electronically submit any confidential business information (CBI). You must submit an original and two copies of CBI under separate cover to: RCRA CBI Document Control Officer, Office of Solid Waste (5305W), U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington, D.C. 20460.

If you do not submit comments electronically, we are asking prospective commenters to voluntarily submit one additional copy of their comments on labeled personal computer diskettes in ASCII (text) format or a word processing format that can be converted to ASCII (text). It is essential that you specify on the disk label the word processing software and version/edition as well as the commenter's name. This will allow us to convert the comments into one of the word processing formats used by the Agency. Please use mailing envelopes designed to protect the diskettes. We emphasize that submission of diskettes is not mandatory, nor will it result in any advantage or disadvantage to any commenter.

Today's notice proposes specific changes to the NESHAP: Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors (Phase I) rule, published September 30, 1999 (64 FR 52828). After promulgation, commenters (primarily the regulated community) raised numerous potential issues through informal comments and during litigation settlement discussions. After considering the issues raised, we have decided to propose for comment twenty amendments to the final rule, most of the proposed changes relating to compliance and implementation of the rule.

The ability of facilities to meet the September 30, 2002 compliance date may be dependent upon when these proposed changes are made final. While we expect to complete the rulemaking process and publish final amendments in a timely manner, we request comments on how the timing of these rule changes could impact compliance. In addition, we solicit comments on solutions to address compliance problems should they arise (e.g., use of § 63.1206(b)(4) to obtain an extension of compliance with the emission standards of up to one year).

In the “Rules and Regulations” section of the Federal Register , we are taking direct final action on thirteen additional amendments to the Phase I rule. If you wish to comment on those amendments, you must submit comments following the directions in the Addresses section of that action.

The remaining sections of this part provide additional background information on the Phase I final rule.

In the Phase I final rule, we adopted National Emissions Standards for Hazardous Air Pollutants to control toxic emissions from the burning of hazardous waste in incinerators, cement kilns, and lightweight aggregate kilns. These emission standards created a technology-based national cap for hazardous air pollutant emissions from the combustion of hazardous waste in these devices. Additional risk-based conditions necessary to protect human health and the environment may be imposed (assuming a proper, site-specific justification) under section 3005(c)(3) of the Resource Conservation and Recovery Act (RCRA).

Section 112 of the CAA requires emissions standards for hazardous air pollutants to be based on the performance of the Maximum Achievable Control Technology (MACT). These standards apply to the three major categories of hazardous waste burners—incinerators, cement kilns, and lightweight aggregate kilns. For purposes of today's proposal, we refer to these three categories collectively as hazardous waste combustors (HWC). Hazardous waste combustors burn about 80% of the hazardous waste combusted annually within the United States. The Phase I HWC MACT standards are expected to achieve significant reductions in the amount of hazardous air pollutants being emitted each year.

Additionally, the Phase I HWC MACT rule satisfies our obligation under RCRA (the main statute regulating hazardous waste management) to ensure that hazardous waste combustion is conducted in a manner protective of human health and the environment. By using both CAA and RCRA authorities in a harmonized fashion, we consolidate regulatory control of hazardous waste combustion into a single set of regulations, thereby minimizing the potential for conflicting or duplicative federal requirements.

More information on the Phase I HWC MACT rule is available electronically from the World Wide Web at www.epa.gov/hwcmact.

On November 19, 1999, we issued a technical correction to the Phase I HWC MACT final rule (64 FR 63209). It clarified our intent with respect to certain aspects of the Notification of Intent to Comply and Progress Report requirements of the 1998 “Fast Track” final rule (63 FR 33783). Additionally, specific to the Phase I HWC MACT final rule, we corrected several typographical errors and omissions.

On July 10, 2000, we issued a second technical correction to the Phase I HWC MACT final rule (65 FR 42292). This action corrected additional typographical errors and clarified several issues to make the Phase I rule easier to understand and implement. This action also supplied one omission from the technical correction published on November 19, 1999, and made one correction to the related June 19, 1998 “Fast Track” final rule (63 FR 33783).

On July 25, 2000, the Court of Appeals for the District of Columbia decided Chemical Manufacturers Association v. EPA, 217 F. 3d 861 (D.C. Cir. No. 99-1236). The court held that EPA had the legal authority to promulgate a requirement of early cessation of hazardous waste burning activity for those sources not intending to comply with the MACT emission standards. However, the court also held that we had not adequately explained our reasons for imposing the early cessation requirement. As a result, the court vacated the early cessation requirement and the related Notice of Intent to Comply (NIC) and Progress Report requirements. This vacature took effect on October 11, 2000. Since the requirements were not vacated until after sources were required to submit their NICs (on October 2, 2000), we determined that the court's action does not impact a source's ability to request a RCRA permit modification using the streamlined procedures of 40 CFR 270.42(j)(1). As long as a source complied with the NIC provisions (including filing the NIC before the provision was vacated), the source has met the requirements in 40 CFR 270.42(j)(1) and is therefore eligible for the streamlined RCRA permit modification process. The court's decision does not impact the emission standards or compliance schedule for the other requirements of the HWC NESHAP Subpart EEE.

On November 9, 2000, we issued a third technical correction to the Phase I HWC MACT final rule (65 FR 67268). It clarified our intent with respect to the applicability of new source versus existing source standards for hazardous waste incinerators. This action also clarified three issues to make the Phase I rule easier to understand and implement.

On May 14, 2001, we issued a final rule implementing two court orders that removed affected provisions of the Phase I HWC MACT final rule from the Code of Federal Regulations (66 FR 24270). This action removed the Notice of Intent to Comply provisions (discussed above) and certain operating parameter limits of baghouses and electrostatic precipitators.

In developing this proposal, we tried to address the concerns of all our stakeholders. Your comments will help us improve this rule. We invite you to provide different views on options we propose, new approaches we haven't considered, new data, how this rule may effect you, or other relevant information. We welcome your views on all aspects of this proposed rule. Your comments will be most effective if you follow the suggestions below:

• Explain your views as clearly as possible and why you feel that way.

• Provide solid technical and cost data to support your views.

• If you estimate potential costs, explain how you arrived at the estimate.

• Tell us which parts you support, as well as those you disagree with.

• Provide specific examples to illustrate your concerns.

• Offer specific alternatives.

• Refer your comments to specific sections of the proposal, such as the units or page numbers of the preamble, or the regulatory sections.

• Make sure to submit your comments by the deadline in this notice.

• Be sure to include the name, date, and docket number with your comments.

Section 63.1200, Table 1, exempts research, development, and demonstration sources from the Part 63, Subpart EEE, hazardous waste combustor MACT standards. 1 We explained at promulgation that the hazardous waste combustor emission standards and compliance assurance requirements may not be appropriate for these sources because of their typically intermittent operations and small size. See 64 FR at 52839.

The rule defines research, development, or demonstration sources as those sources engaged in laboratory, pilot plant, or prototype demonstration operations: (1) Whose primary purpose is to conduct research, development, or short-term demonstration of an innovative and experimental hazardous waste treatment technology or process; and (2) where the operations are under the close supervision of technically-trained personnel.

Stakeholders express concern that the definition of demonstration source and the provision to allow unlimited one-year time extensions to the exemption may result in commercial, production sources taking inappropriate advantage of the exemption. We request comment on approaches to preclude inappropriate use of the exemption for demonstration sources. Approaches that we are considering include: (1) Clearly distinguishing between research and development sources versus demonstration sources, and limiting the exemption for demonstration sources to one year or less; or (2) requiring documentation of how a source's demonstration of an innovative or experimental hazardous waste treatment technology or process is different from the waste management services provided by a commercial hazardous waste combustor.

“Hazardous waste residence time” is defined at § 63.1201(a) as the time elapsed from cutoff of the flow of hazardous waste into the combustor (including, for example, the time required for liquids to flow from the cutoff valve into the combustor) until solid, liquid, and gaseous materials from the hazardous waste, excluding residues that may adhere to combustion chamber surfaces, exit the combustion chamber. As stakeholders recognize, hazardous waste residence time has significant regulatory and enforcement implications. For example, if a source were to exceed an operating requirement or emission standard after the hazardous waste residence time has expired, it is not a violation if the exceedance occurred during start-up or shut-down, or because of a malfunction provided that the source follows the procedures and corrective measures prescribed in the start-up, shut-down, and malfunction plan. In addition, after the hazardous waste residence time has expired, sources may elect to comply with emission standards the Agency has promulgated under sections 112 and 129 of the Clean Air Act for source categories that do not burn hazardous waste in lieu of the hazardous waste combustor standards of Subpart EEE, Part 63. See § 63.1206(b)(1).  2

Since promulgation of the hazardous waste combustor rule, stakeholders have raised the issue of whether a hazardous waste organics residence time should be defined that is independent of and shorter than the bulk solids residence time.

Industry stakeholders recommend an approach to calculate a hazardous waste organics residence time that defines when organic constituents in solid materials have been destroyed.  3 Although the concept has merit, several issues must be addressed prior to revising the rule to allow sources to petition the Administrator for case-by-case determinations of an organics residence time. We therefore are not proposing a change at this time but are requesting comment on the concept and implementation of an organic residence time.

As contemplated by stakeholders, the hazardous waste organics residence time would be independent of and considerably shorter than the bulk hazardous waste residence time discussed above. As with the bulk hazardous waste residence time, an organics residence time would have significant regulatory and enforcement implications. After the hazardous waste organics residence time has expired, an exceedance of the carbon monoxide or hydrocarbon emission standard or an operating parameter limit associated with the destruction and removal efficiency (DRE) or dioxin/furan emission standards would not be a violation if the exceedance occurred during start-up or shut-down or were caused by a malfunction and sources comply with the procedures and corrective measures prescribed in the start-up, shut-down, and malfunction plan. In addition, it seems appropriate to allow sources to elect to comply with standards the Agency has promulgated under sections 112 or 129 of the Clean Air Act to control organic emissions for source categories that do not burn hazardous waste in lieu of the hazardous waste combustor standards of Subpart EEE, Part 63. As discussed in Section III below, however, providing only a partial transition from the hazardous waste combustor MACT standards of Subpart EEE may be problematic.

Stakeholders suggest that a hazardous waste organics residence time can be calculated as the sum of: (1) The time for the solid matrix containing the organic constituents to reach the target temperature required to destroy the organics; (2) the time for the organic constituent to be destroyed at the target temperature; and (3) the time for the gas to pass through the combustion chamber and exit the air pollution control system. The time required for the organic constituents within the solid matrix to reach the target temperature would be calculated using standard heat transfer equations which are available in chemical engineering references.  4 Stakeholders state that these equations can be applied to various materials, assuming the thermal conductivity of the material. These equations also can be applied easily to various geometries, such as a 55 gallon drum (right circular cylinder), or to irregular shaped items resulting from shredder feed.

Stakeholders state that once the solid is at the target temperature the time for the hazardous constituent to be destroyed can be calculated using equations that are readily available from Dr. Dellinger's work on developing the low oxygen thermal stability index for hazardous organic compound incinerability.  5 Using Dellinger's kinetic models under low oxygen conditions, the destruction time for hazardous constituents can be calculated.

To implement this approach to calculate a hazardous waste organics residence time, stakeholders suggest that sources should include the retention time evaluation and calculations in a report developed by an independent Professional Engineer with combustion engineering expertise. Sources would submit the report to the Administrator for review and approval.

Stakeholders state that the general approach can be readily applied to various scenarios as necessary on a site-specific basis. Stakeholders have considered how some scenarios could be addressed, as discussed below, and believe that approaches to address other scenarios would become apparent as the approach is applied to the site-specific situation.

Stakeholders acknowledge that an incineration process can have several types of solid feed such as bulk solids, direct drum feed in various sizes, shredded waste feed, and other mechanisms. Each of these solid feed scenarios can be evaluated for the heat transfer step by assigning an appropriate geometry to the solid for use in the heat flux equations. Heat transfer will take place more rapidly in shredded waste feed, in which the particle size of the solids is reduced. At the other extreme is a monolith in a 55 gallon drum, which will require a longer time for the center point to reach the target temperature. The center point of the monolith can be considered the point where the organic constituent is located for ensuring a worst case for the heat transfer step. Site-specific feed can be modeled by evaluating the actual geometry and size of solid feed and post-shredder feed.

The time for the solid mass to reach temperature will depend on the thermal conductivity of the solid mass. The thermal conductivity is a key parameter in the heat transfer equation. The types of solid feed managed at a particular site can be used to select a worst case material for thermal conductivity. Stakeholders present as an example a facility that feeds certain polymeric monolithic materials in 55 gallon drums. Certain polymers may have a low thermal conductivity that can be used as a worst case. References such as Perry's Chemical Engineering Handbook can be consulted to provide a range of thermal conductivities for consideration. For example, stakeholders note that polypropylene has one of the lower thermal conductivities of 0.08 BTU/hr-sq.ft.-°F (see Table 23-10 in Perry's Handbook). This might provide a good worst case value to use for the solid mass thermal conductivity for this source.

Stakeholders suggest that a worst-case hazardous organic constituent could be selected on the basis of its ranking in various incinerability indices, just as principal organic hazardous constituents (POHCs) are selected for demonstrating destruction and removal efficiency (DRE). A constituent that ranks high in both the heat of combustion and low oxygen thermal stability indices could be used. In addition, a few compounds with complex structures that would be expected to yield various decomposition byproducts could be modeled. Examples of such compounds are pentachlorophenol, perchloroethylene, and certain pesticides. Stakeholders suggest that Dr. Dellinger's work, cited above, can be consulted to select additional worst case constituents.

Stakeholders suggest that target destruction temperatures can be selected based on the kinetic studies of Dr. Dellinger. Stakeholders state that Dellinger has generally found that any organic chemical and its organic byproducts can be completely destroyed at 800°C. 6 Also, the range of destruction temperatures published by Dellinger can be consulted to select a target temperature on a site-specific basis for the types of wastes that are managed.

Stakeholders acknowledge that certain solid geometries may result in the organic constituent being isolated from combustion air, such that pyrolytic conditions must be assumed. Nonetheless, stakeholders state that a destruction time can still be calculated and the low oxygen conditions can be incorporated into the kinetic model. Dellinger has published such calculations in developing the low oxygen thermal stability index for incinerability. 7 Stakeholders state that pyrolytic conditions would likely be required to be assumed for monolithic feed. They note that shredder-feed, however, substantially reduces the particle size of the solid feed, and mixing with combustion air is achieved.

Stakeholders acknowledge that other factors in a given waste may consume energy, requiring another step or two to the retention time calculation. For example, a solid waste monolith that is a low melting point solid will go through a melting transition that will consume heat before the temperature of the mass rises past the transition point. Stakeholders state that this step can be easily added to the retention time calculation, if necessary. Similarly, a waste may contain a pocket of water or other low boiling point material, and a step for enthalpy of vaporization may need to be added. Stakeholders note that these calculations can also be performed as a form of sensitivity analysis to determine how conservative the retention time calculation is.

We acknowledge that the residence time for organic constituents in a solid matrix is generally less than the residence time for the bulk hazardous waste residue. Thus, ideally, sources should be eligible for the reduced regulatory and enforcement burden discussed above once the organics residence time has expired. One promising feature of the stakeholders' approach is that it would conservatively predict how long it takes the waste monolith to heat up to volatilize the organic constituent. We are concerned, however, that their approach does not explicitly address how long it would take for: (1) The generated volatiles or their potentially toxic intermediates to diffuse to the surface of the monolith where oxygen is present for destruction; or (2) alternatively for oxygen in the bulk gas to diffuse from the surface of the monolith to reach the volatiles. In lieu of accounting for the time required to destroy organic constituents under oxidative conditions, stakeholders' approach assumes that destruction would occur within solid matrices under pyrolytic conditions. Further, stakeholders believe that calculations developed by Dellinger while developing the low oxygen thermal stability index could be used to model those pyrolytic reactions. We request comments on whether Dellinger's work on low oxygen destruction would adequately model destruction under the pyrolytic conditions that occur within solid matrices, with respect to either the time required for destruction of the initial organic constituent or the types of intermediates that would be formed and the time required to destroy the intermediates. Finally, we request comments on whether it is practicable to perform valid engineering calculations for multiple waste streams that are not homogenous and that contain multiple organic constituents of concern.

We request comment on stakeholders' approach to calculate an organics residence time and specifically whether it can be revised to address our concerns.

For sources equipped with a dry particulate matter control device, we propose to maintain the semivolatile metal, low volatile metal, and particulate matter  8 emission standards and the associated particulate matter control device operating requirements after the hazardous waste residence time has expired and until the control device undergoes a complete cleaning cycle (e.g., for all compartments of a baghouse; for all fields of an electrostatic precipitator). 9 For sources equipped with activated carbon injection, the dioxins/furans and mercury emission standards would also continue to apply after the hazardous waste residence time has expired until the control device undergoes a complete cleaning cycle.

Dry particulate matter emission control devices such as electrostatic precipitators and baghouses retain collected particulate matter in the device until the sections of the device are cleaned sequentially, e.g., rapping of electrostatic precipitator plates, bag cleaning. This retained particulate matter contains metal hazardous air pollutants other than mercury due to its volatility. In addition, if the source is equipped with activated carbon injection, the collected particulate matter also will contain mercury and dioxins/furans. Our concern is that these pollutants could be emitted at levels exceeding the hazardous waste combustor emission standards after the hazardous waste residence time has expired.

After the hazardous waste residence time has expired, sources may choose to comply with MACT standards the Agency has promulgated under sections 112 and 129 of the Clean Air Act for source categories that do not burn hazardous waste in lieu of the Subpart EEE standards. See § 63.1206(b)(1).  10 If sources choose to comply with those otherwise applicable MACT standards, we are concerned that these standards may not adequately ensure that the hazardous waste-derived pollutants remaining in the dry particulate matter control device are controlled to the level required by the hazardous waste combustor rules of Subpart EEE. For example, if the alternative particulate matter standard were substantially higher than the hazardous waste combustor MACT standard, sources may be able to operate the control device under less stringent operating levels (e.g., lower power to a field of an electrostatic precipitator) which could cause the accumulated particulate matter (containing hazardous waste-derived pollutants) retained within the device to be reentrained in the stack gas. This could allow hazardous waste-derived pollutants to be emitted at levels exceeding the hazardous waste combustor MACT emission standards. When the particulate matter control device undergoes a complete cleaning cycle, the accumulated hazardous waste-derived pollutants are removed, thus precluding an exceedance of the hazardous waste combustor emission standards.

We considered whether increasing the gas temperature at the inlet to the dry particulate matter control device, absent a requirement to maintain the temperature operating limit, could cause hazardous waste-derived semivolatile metals (and mercury and dioxins/furans if sources use activated carbon injection) contained in the accumulated particulate matter to volatilize and be emitted at levels that exceed an emission standard.

We initially conclude that, absent a gas inlet temperature limit, gas temperatures are not likely to increase to the levels necessary to volatilize enough semivolatile metals to cause an exceedance of the emission standards. This is particularly true if we consider that many sources should be able to complete a cleaning cycle of their electrostatic precipitator or baghouse within 30 minutes after the hazardous waste residence time has expired. We are concerned, however, that, for sources equipped with activated carbon injection, increases in inlet gas temperatures above the operating limit may potentially revolatilize captured mercury and dioxins/furans. We request comment on the extent to which mercury and dioxins/furans may revolatilize and be emitted because of increased gas temperatures in the short period after the hazardous waste residence time has expired and the cleaning cycle for the dry particulate matter control device has been completed.

As discussed above, we propose to require continued compliance with the semivolatile metal, low volatile metal, and particulate matter standards (and the dioxin/furan and mercury standards if sources use carbon injection) after the hazardous waste residence time has expired until the dry particulate matter control device undergoes a complete cleaning cycle. However, we are concerned, that unless additional controls are applied, this requirement could potentially result in an increase in particulate emissions and associated hazardous air pollutants.

When a dry particulate matter control device is cleaned, collection efficiency is temporarily degraded. For example, when the plates in the last field of an electrostatic precipitator are rapped, some of the resuspended particulate matter is unavoidably emitted. For baghouses, when the bags are cleaned, typically using a pulse of air, the collection efficiency of the cleaned bags is reduced until a layer of particulate matter reforms on the bags. Thus, increasing the cleaning frequency of a baghouse decreases its collection efficiency.

To comply with the proposed requirement to clean the particulate matter control device before the Subpart EEE metals and particulate matter standards are waived in lieu of other standards, sources may want to initiate a cleaning cycle immediately after the hazardous waste residence time has expired. Further, they may want to restart the timing of the cleaning cycle beginning with the cleaning that occurs after the hazardous waste residence time has expired. Increasing the cleaning cycle frequency could potentially result in an exceedance of the emission standards, however, if compliance with the standards has not been demonstrated during performance testing at that cleaning cycle frequency. To ensure that the emission standards are not exceeded due to increased cleaning cycle frequency, sources may not increase the cleaning cycle frequency beyond the frequency used during the comprehensive performance test.

If sources elect to comply temporarily with the otherwise applicable section 112 or 129 Clean Air Act standards after the hazardous waste residence time has expired, sources would remain subject to certain Subpart EEE standards and associated compliance requirements until sources completed a cleaning cycle of the dry particulate matter control device: Particulate matter, semivolatile metals, low volatile metals, and, if sources use activated carbon injection, dioxin/furan and mercury. Given that sources remain an affected source only under Subpart EEE when sources elect to comply temporarily with otherwise applicable MACT standards, sources would identify this operating scenario as an alternative mode of operation under § 63.1209(q). 11 Consequently, sources would specify the applicable emission standards and compliance requirements for this alternative mode of operation as: (1) Those standards and compliance requirements of Subpart EEE that remain in effect; and (2) those otherwise applicable standards and compliance requirements established under section 112 or 129 (e.g., Subpart LLL for cement kilns). If an otherwise applicable section 112 or 129 standard or compliance requirement were more stringent than a Subpart EEE standard or compliance requirement that remains in effect, sources would comply with the more stringent standard or compliance requirement.

Exceedance of a Subpart EEE operating parameter limit (OPL) for a dry particulate matter control device after the hazardous waste residence time has expired but before a cleaning cycle of the device has been completed would be evidence of failure to maintain compliance with the Subpart EEE emission standards. Given that the hazardous waste residence time has expired, however, the exceedance need not be considered for the excessive exceedance reporting requirement under § 63.1206(c)(vi). Similarly, if the exceedance occurs because of a malfunction, the exceedance would not be evidence of failure to maintain compliance with an emission standard if the source followed the corrective measures prescribed in its startup, shutdown, and malfunction plan. Thus, the consequences of an exceedance would be the same after the hazardous waste residence time has expired whether the exceedance occurs before or after the cleaning cycle has been completed if the source chose to continue to comply with the Subpart EEE emission standards (i.e., in lieu of otherwise applicable MACT standards under a different mode of operation). Having equivalent consequences of an exceedance of an OPL after the hazardous waste residence time has expired irrespective of whether the cleaning cycle has been completed is appropriate. Our objective is simply to ensure that the Subpart EEE OPLs for the dry particulate matter control device are maintained until the cleaning cycle is completed to minimize emissions of hazardous waste-derived HAPs to below the Subpart EEE emissions standards. Our intent is not to penalize a source for exceedances that may be attributable to unavoidable malfunctions after the source has taken the preventative measures to minimize emissions of HAPs by cutting off the hazardous waste feed and allowing the hazardous waste residence time to expire.

Some stakeholders have expressed initial concern with the technical feasibility of these proposed requirements. We will be considering these concerns prior to issuing a final rule.

The final rule requires sources to control combustion system leaks by either: (1) Keeping the combustion zone sealed; (2) maintaining the maximum combustion zone pressure lower than the ambient pressure measured using an instantaneous monitor; or (3) using an alternative means to provide control of system leaks. See §§ 63.1201(a), 63.1206(c)(5)(ii), and 63.1209(p). The rule defines an “instantaneous monitor” as one that continuously samples, detects and records the regulated parameter without use of an averaging period. In today's notice, we propose to revise the combustion system leak requirements to better clarify the intent of this provision, and we are taking comment on whether we should allow sources to average pressure readings over short periods of time when demonstrating that their combustion system is maintained below ambient pressure.

After publication of the final rule, stakeholders expressed concern that the requirement to maintain the combustion zone pressure lower than ambient pressure (option 2 above) could result in an overly prescriptive requirement. Stakeholders believe this regulatory language can be interpreted to require sources to monitor and record combustion zone pressure at a frequency of every 50 milliseconds. 12 Stakeholders state such an interpretation would be problematic because of the enormous number of data points that must be recorded and because such a frequent monitoring frequency would greatly increase the number of automatic waste feed cutoffs. Stakeholders also requested that we clarify that combustion system leaks refer to fugitive emissions resulting from the combustion of hazardous waste, and not fugitive emissions that originate from nonhazardous process streams (e.g., the clinker product at a cement kiln).

After careful review of the regulatory language and after considering our original intent, we agree that the final rule is ambiguous and may be conservatively interpreted to require sources to monitor and record combustion zone pressure at a frequency of every 50 milliseconds. Therefore, in today's notice, we clarify that our intent is to require sources to use a pressure monitor and recording frequency that is adequate to detect combustion system leak events. We also clarify that the intent of the combustion system leak requirement is to prevent fugitive emissions from the combustion of hazardous waste, not fugitive emissions that originate from nonhazardous process streams.

To make these clarifications, we propose to modify the § 63.1201(a) definition of an instantaneous pressure monitor to read as follows: “Instantaneous monitoring for combustion system leak control means detecting and recording pressure without use of an averaging period, at a frequency adequate to detect combustion system leak events from hazardous waste combustion ” (emphasis added). 13 We also propose to revise the § 63.1209(p) automatic waste feed cutoff regulatory language to read as follows: “If you comply with the requirements for combustion system leaks under § 63.1206(c)(5) by maintaining the maximum combustion chamber zone pressure lower than ambient pressure to prevent combustion system leaks from hazardous waste combustion, sources must perform instantaneous monitoring of pressure and the automatic waste feed cutoff system must be engaged when negative pressure is not maintained” (emphasis added).

We do not specify the monitoring and recording frequencies in the regulations, however, because sources differ in design and operation such that different monitoring and recording frequencies may be needed to ensure that fugitive emissions do not occur. Rather, sources and permit officials should determine on a site-specific basis what frequency of monitoring and recording would be appropriate. Each source should describe in the comprehensive performance test workplan and Notification of Compliance how their compliance method will ensure that fugitive emissions will not occur. We propose that this description specify the monitoring and recording frequency and how the monitoring approach will be integrated into the automatic waste feed cutoff system.

Stakeholders also suggest that we allow averaging of the pressure readings over short periods of time, e.g., a 5-second rolling average updated every second, in demonstrating the combustion system is maintained below ambient pressure. Averaging of pressure readings is less stringent than the current final rule instantaneous monitoring requirements. We request comment on whether such a monitoring approach is appropriate, and specifically, whether averaging pressure readings can adequately detect pressure excursion events that result in combustion system leaks.

On July 10, 2000, we issued a technical correction to the operator training and certification requirements of § 63.1206(c)(6) to clarify which employees are subject to the training and certification requirements and to note that the training and certification program should be tailored to the responsibilities of the employee. See 65 FR at 42295. Subsequent to this technical correction, incinerator stakeholders raised concerns about the requirement for incinerator control room operators and shift supervisors to be trained and certified under the American Society of Mechanical Engineers (ASME) Standard Number QHO-1-1994. Although the rule allows incinerator control room operators to be trained and certified under either a State program or ASME's program, stakeholders note that they are required to use the ASME program because there are no State programs at this time. Stakeholders raise the following concerns: (1) The scope of the ASME training and certification program is too broad; (2) the ASME certification program is problematic for new sources and newly hired operators because it requires 6 months of operating experience at the source before full certification may be awarded; (3) the ASME control room operator training and certification program is not necessary for shift supervisors; and (4) the ASME training and certification program cannot be implemented by the regulatory compliance date.

We provide below our reasons for preferring the ASME training and certification program over site-specific, source-implemented programs, but acknowledge stakeholders' concerns that the program may be more comprehensive than necessary to ensure compliance with the requirements of Subpart EEE. Accordingly, we propose to allow incinerator control room operators to be trained and certified under: (1) A site-specific, source-developed and implemented program; (2) the ASME program; or (3) a State program. We also conclude that it may be difficult for sources that choose to use the ASME program to fully certify their control room operators by the compliance date. Therefore, we propose to require only provisional certification by the compliance date for such sources. In addition, for sources that choose to use the ASME program, only provisional certification would be required for new employees and employees at new facilities prior to their assuming duties. Finally, we propose that control room operator training and certification is not necessary for shift supervisors to help ensure that the source operates within the limits established under the rule and that emissions of hazardous air pollutants are minimized.

Incinerator stakeholders state that the scope of the ASME training and certification program for incinerator control room operators is too broad to apply generically to all control room operators. They prefer a tailored, site-specific, source-developed and implemented training and certification program.

The ASME program requires that control room operators be trained and certified to ensure a broad knowledge of operational, preventive maintenance, safety procedures, and practices for various types of incineration systems, emission control systems, and continuous emissions monitoring systems. Incinerator stakeholders state that there is no obvious benefit of requiring a broad knowledge of incineration issues; knowledge of only the equipment and operations at the operator's site are important. They question the benefit of, for example, an operator of a small liquid waste incinerator equipped with a wet scrubber knowing how to operate a rotary kiln incinerator equipped with a baghouse. They note further that it is unnecessarily time-consuming and stressful for operators that are unfamiliar with equipment they have never operated to undergo a rigorous training and certification program for that equipment. In addition, they note that the ASME standard was developed as a voluntary standard. Finally, they note that cement kiln and lightweight aggregate kiln control room operators may be trained and certified under a site-specific program.

The ASME program is comprised of a broad training curriculum that is implemented by each source followed by a provisional certification that is administered by ASME. Provisional certification is awarded after the operator passes a comprehensive, generic written test addressing operations of various types of incinerators and control systems. Operators with provisional certification may apply to ASME for full certification. Full certification is awarded after passing an on-site, site-specific oral examination.

We continue to believe that a broad training and certification program can be beneficial. A broad training program may enable control room operators to recommend modifications to existing equipment or make recommendations for new equipment, which may reduce HAP emissions. In addition, certification under a broad training curriculum would avoid the retraining and recertification that would be required if the source modifies the design or operation of the unit in a manner that could affect compliance with the emission standards and operating requirements of Subpart EEE.

Nonetheless, we agree with incinerator stakeholders that the broad scope of the ASME program may not be necessary to ensure compliance with the provisions of Subpart EEE. Accordingly, we propose to allow sources to use site-specific, source-developed and implemented training and certification programs, as discussed under Section B below.

The rule currently requires full ASME (or State) certification by the compliance date. We agree with stakeholders that this is not workable because ASME does not have the resources to implement the site-specific oral examination requisite for full certification by the compliance date. After passing the written examination and achieving provisional certification, control room operators must apply to ASME for the oral examination. Stakeholders indicate that it will take one half day per control room operator to administer the site-specific oral examination. For many facilities, the ASME oral examination team  14 will require approximately one week, including travel time, to administer the exam to all control room operators. Although ASME may train several examination teams, it is unlikely that full certification examinations can be implemented at all 149 hazardous waste incineration facilities prior to the compliance date.

To address this concern, we propose to require only provisional certification by the compliance date for sources that choose to use the ASME certification program. In addition, the operator would be required to submit an application to ASME for full certification and be scheduled for the certification examination. Finally, the operator would be required to achieve full certification within 1 year of the compliance date. We hope that providing this flexibility in the deadline for full certification will encourage use of the ASME program. We specifically request comment on whether the proposed deadlines for implementing the ASME certification program are appropriate.

The ASME standard requires that control room operators have six months of operating experience at the source before they can be fully certified. This is a problem for new sources and for newly hired operators. We propose to preclude this problem by requiring only provisional certification before operators at new sources and newly hired operators could assume their duties. Also, we would require that provisionally certified operators apply to ASME for, and be scheduled for, full certification before they assume their duties. In addition, we would require that they achieve full certification within one year of assuming their duties. This will ensure that full certification will be achieved in a timely manner.

Under today's proposed rule, a source could choose to develop and implement a site-specific training and certification program in lieu of the ASME program or a State program. Certification under a site-specific program would be required by the compliance date given that the source will implement both the training and certification (i.e., written examination at a minimum). We note that cement and lightweight aggregate kiln sources are currently allowed to use site-specific training and certification programs because there is no ASME or other standard for these sources that addresses their hazardous waste burning activities. Because the requirements discussed below are appropriate for these sources as well, we propose to require that the requirements also apply to cement and lightweight aggregate kilns.

We propose to specify a training curriculum to ensure that the scope of the training is sufficient to ensure the control room operator can maintain compliance with the requirements of Subpart EEE. The certification program (i.e., written examination at a minimum) would be required to address the topics in the training curriculum. The training curriculum would be required to include the following topics: (1) Environmental concerns, including types of emissions; (2) basic combustion principals, including products of combustion; (3) operation of the specific type of combustor used by the operator, including proper startup, waste firing, and shutdown procedures; (4) combustion controls and continuous monitoring systems; (5) operation of air pollution control equipment and factors affecting performance; (6) inspection and maintenance of the combustor, continuous monitoring systems, and air pollution control devices; (7) actions to correct malfunctions or conditions that may lead to malfunctions; (8) residue characteristics and handling procedures; and (9) applicable Federal, state, and local regulations, including Occupational Safety and Health Administration workplace standards. This training curriculum is modeled after the requirements the Agency recently promulgated for commercial and industrial solid waste incinerators. See 65 FR 75338 (December 1, 2000). We believe this training is also appropriate for hazardous waste combustors.

To maintain certification, an operator would be required to complete an annual review or refresher course covering, at a minimum, the following topics: (1) Update of regulations; (2) combustor operation, including startup and shutdown procedures, waste firing, and residue handling; (3) inspection and maintenance; (4) responses to malfunctions or conditions that may lead to malfunction; and (5) operating problems encountered by the operator. These are the same requirements the Agency recently promulgated for commercial and industrial solid waste incinerators at § 60.2085, and we believe they are also appropriate for hazardous waste combustors.

The final rule requires the same level of training and certification for shift supervisors and control room operators. Incinerator stakeholders question whether shift supervisors need to meet these training and certification requirements. Stakeholders note that shift supervisors often have administrative duties that are not closely related to the technical knowledge required to operate and maintain a combustor.

After reconsideration, we agree with stakeholders' reasons for not requiring that shift supervisors be trained and certified to the level of a control room operator. Accordingly, we propose to require that shift supervisors, like personnel other than control room operators, be trained and certified to the technical level commensurate with the employee's job duties.

We propose to revise the rule to clarify that a certified control room operator must be on duty at the source at all times the source is in operation. Having a certified operator present at all times is necessary to ensure compliance with the emission standards and operating requirements, and to take appropriate corrective measures when malfunctions occur.

Section 63.1206(c)(7)(ii) of the hazardous waste combustor rule prescribes baghouse operation and maintenance requirements for incinerators and lightweight aggregate kilns, including a requirement for the continuous operation of a bag leak detection system as a continuous monitor. Since promulgation of the rule, stakeholders have raised two issues: (1) Can less sensitive bag leak detectors be approved under the alternative monitoring provisions; and (2) why did we conclude that opacity monitors meeting revised Performance Specification 1 are not likely to be acceptable bag leak detectors.

Section 63.1206(c)(7)(ii)(D)( 1 ) requires the bag leak detector system to be capable of continuously detecting and recording mass changes in particulate matter emissions at concentrations of 1.0 milligrams per actual cubic meter or less. Stakeholders state that monitors with higher detection limits are able to detect subtle changes in baseline, normal emissions as well as catastrophic events, and question whether these monitors can be approved under the alternative monitoring petitioning procedures of § 63.1209(g)(1).

We support the use of monitors with higher detection limits provided the monitor is sensitive enough to detect subtle increases in baseline, normal emissions, and we plan to develop guidance recommendations on this issue. We request comment on whether § 63.1206(c)(7)(ii)(D)( 1 ) should be revised to explicitly allow the use of monitors with higher detection limits, or whether the existing alternative monitoring provisions coupled with guidance recommendations is sufficient. In addition, we request comment on how a source would document that a bag leak detection system, with a detection level higher than 1.0 milligrams per actual cubic meter, can detect subtle changes in baseline, normal mass emissions of particulate matter. For example, should we require site-specific tests to document that alternative detectors provide a measurable and repeatable change in opacity output with an increase in particulate matter mass emissions?

EPA promulgated a significantly improved Performance Specification 1 (PS1) for opacity monitors on August 10, 2000. See 65 FR at 48914. We considered whether to allow use of opacity monitors meeting PS1 as bag leak detectors, but conclude that they are not likely to be sensitive enough to detect subtle increases in mass particulate matter emissions from a source equipped with a well designed and operated baghouse.

Revised PS1 includes additional design and performance specifications as well as new test procedures that provide a profound improvement on opacity data accuracy and precision. Collectively, the additional measures provide a comprehensive, in-depth functional test of the complete measurement procedure, thereby eliminating many of the performance problems associated with previous opacity monitors.

The revisions go far beyond the previous version of PS1, drawing on recent technological advancements in optics, electronics, and information transfer. There are similar specifications for such monitors in Europe. The stipulation of automatic self-diagnosing capability is one of the many modern features incorporated into the new PS1. Taken together, the additional measures reflect a distinct new generation in the state-of-the-art of opacity monitors.

Notwithstanding the improvements that revised PS1 requires, opacity monitors are generally not acceptable for use as a bag leak detector because they are not sensitive enough to detect subtle increases in baseline, normal emissions. Baghouse emission opacity levels are very nearly zero at particulate matter concentrations below emission standards and are very near the lower detection limits of a continuous opacity monitoring system (COMS). COMS manufacturers have collectively raised the concern about COMS sensitivity limitations at low opacity levels. (See ASTM D-6216-98, Standard Practices for Opacity Monitor Manufacturers to Certify Conformance with Design and Performance Specifications.) Although the increase in particulate matter mass emissions that would trigger a measurable opacity change that a COMS could detect is usually site-specific and would depend on the particle size and reflective and refractive properties. We are concerned that particulate matter emission concentrations may have to double or triple before a COMS could detect a significant opacity change at the low opacity levels associated with baghouse emissions. For these reasons, we conclude that COMS meeting Performance Specification 1 are not likely to be suitable as bag leak detectors. Nonetheless, as discussed above, we request comment on whether an approach could be developed to allow use of bag leak detectors that have detection limits above 1.0 milligrams per actual cubic meter.

Moreover, we note that electrodynamic and triboelectric bag leak detectors have proven to be much more sensitive and cost about the same or less than COMS to install and operate. In addition, some particulate matter continuous emissions monitors (CEMS) have been shown to be able to detect very small changes in particulate matter mass emissions at low emission levels. If sources were to use a particulate matter CEMS as a bag leak detector, sources need not correlate the detector to particulate matter emission concentrations. Rather, sources would be required to document that the CEMS provides a measurable and repeatable change in output with an increase in particulate matter mass emissions.

During the comment period of the final rule and after promulgation, stakeholders raised the concern that the rule requires sources to commence performance testing within 180 days after September 30, 2002, even if the test plan has not been approved. Although the rule requires submittal of the test plan 12 months prior to the scheduled test date to provide a nine-month review period, stakeholders are concerned that the test plan may not be approved at the conclusion of that review period. Stakeholders state that they may spend hundreds of thousands of dollars to conduct a test under an unapproved test plan, only to learn after the test that EPA or the state may not accept the results as a valid demonstration of compliance with the emission standards due to differences of opinion on test design. In the preamble to the final rule, we address this issue by stating that “If permit officials nevertheless fail to act within the nine-month review and approval period, a source could argue that this failure is tacit approval of the plan and that later “second-guessing” is not allowable.” See 64 FR at 52912. However, stakeholders are concerned that this preamble language does not guarantee that they will not have to repeat the test. Stakeholders recommend revising the rule to allow sources to wait until a test plan has been approved before conducting a performance test.

We are reluctant to deviate from the Part 63 General Provision's six-month deadline after the compliance date for conducting the initial comprehensive performance test. We continue to believe that an open-ended test date will not provide an incentive for either sources or regulatory officials to resolve differences related to a test plan, thereby unnecessarily delaying testing. Nonetheless, we acknowledge that there may be situations where a source and regulatory officials are making genuine efforts to complete review of the test plan, but for reasons beyond their control, the review cannot be completed prior to the testing deadline. Accordingly, we propose to revise the rule to address these particular situations.

Under today's proposal, a source may petition the Administrator, under the authority of § 63.7(h), to obtain a “waiver” of any performance test—initial or periodic performance test; comprehensive or confirmatory test. The “waiver” would not eliminate the test, but would be used to grant an extension of time to conduct the performance test. To qualify for the waiver, a source must make a good faith effort to comply with the testing requirements in a timely manner. First, as currently required, sources must submit a site-specific emissions testing plan and a continuous monitoring system performance evaluation test plan at least one year before a comprehensive performance test is scheduled to begin (see § 63.1207(c)(1)), or at least 60 days before a confirmatory performance test is scheduled to begin (see § 63.1207(d)). Sources also must submit all other documentation required by Subpart EEE to be included with the performance test plans. The submitted test plans must fulfill the substantive content requirements of §§ 63.1207(f) and 63.8(e). Second, a source must make a good faith effort to accommodate the Administrator's comments on the test plans. Finally, the Administrator must not take final action, through a notification of intent to deny (see § 63.7(c)(3)(i)(B)), to deny the source's test plan(s).

Under today's proposal, sources must submit to the Administrator a waiver petition or request to renew the petition under § 63.7(h), separately for each source, at least 60 days prior to the scheduled date of the performance test. The Administrator would approve or deny the petition within 30 days of receipt and promptly notify the source of the decision. The Administrator would not approve extensions of the test date for a duration exceeding 6 months, and the Administrator would include in granted petitions a sunset provision to end the waiver within 6 months.

To renew a waiver, we are proposing that sources must submit a revised petition under § 63.7(h)(3)(iii) at least 60 days prior to the end date of the most recently approved waiver petition. The Administrator could approve a revised petition for a total waiver period up to 12 months. A performance test could not be delayed more than a total of 12 months, irrespective of the status of approval of the test plan.

If the Administrator denies a § 63.7(h) waiver petition, we are proposing that the source must commence the performance test, with or without approved test plans, by either the deadline provided by Subpart EEE or by the expiration date of their most recently approved waiver petition, whichever is later.

Sources would also need to address, in the waiver petition, the following requirements of § 63.7(h). A source must provide documentation to enable the Administrator to determine if “the source is meeting the relevant standard(s) on a continuous basis * * *.” See § 63.7(h)(2). For extension requests of the initial comprehensive performance test, a source must submit the Documentation of Compliance to assist the Administrator in making this determination. In addition, § 63.7(h)(3)(iii) requires sources to “include information justifying the owner or operator's request for a waiver, such as the technical or economic infeasibility, or the impracticality, of the affected source performing the required test.”

In order to continue to keep the public informed of the source's compliance status, the source would need to notify the public (i.e., the source's public mailing list) of their § 63.7(h) petition to “waive” a performance test.

The following is an example time line indicating how the proposed § 63.7(h) waiver petitioning process would work for the initial comprehensive performance test. All end dates should be read as “no later than” X number of months. The time line assumes the source has submitted its performance test plans (i.e., for emissions testing and continuous monitoring system evaluation) on the deadline date—one year before the performance test must be conducted (i.e., sources submit the test plans 6 months prior to the compliance date).

During the confirmatory performance test, the final rule requires sources to operate so that carbon monoxide or hydrocarbon levels, and operating parameter limits associated with the dioxin/furan emission standard, are within the range of the average values over the previous 12 months. Sources also must stay within the maximum or minimum value, as appropriate, that is allowed. See § 63.1207(g)(2). These requirements ensure that during the confirmatory performance test, dioxin/furan emissions are within the range of the normal to the highest allowable emissions.

Stakeholders express concern that it may be difficult to “dial in” operation of the combustor to the required range for each operating parameter simultaneously. Sources are particularly concerned about having to operate within a potentially narrow range of carbon monoxide levels for sources that normally operate close to the 100 ppmv limit. This is because carbon monoxide levels are dependent on many combustion-related factors and cannot be directly “dialed in” as can be done for other parameters (e.g., activated carbon injection federate).

Although this is not likely to be a widespread problem, we acknowledge there may be a problem in some situations. Accordingly, we propose today to revise the rule to: (1) Allow approval in the test plan for operations under a wider operating range for a particular parameter based on information justifying that operating within the required range may be problematic; and (2) allow the Administrator to accept test results during the finding of compliance based on operations outside of the range specified in the confirmatory test plan.

Allowing the Administrator to accept test results based on operations outside of the range specified in the test plan would address when a source did not anticipate a problem in maintaining the operating levels within the required range (and therefore did not request advance approval to do so), but because of unforeseen factors, were unable to maintain the required range. This provision would give permit writers discretion to accept emissions data obtained when operating outside of the prescribed range so that sources would not have to incur the costs of an additional confirmatory test. In determining whether to accept test results from operations outside of the range specified in the test plan, permit writers would consider factors including: (1) The magnitude and duration of the deviation from the required range; (2) the historical range of the parameter (e.g., the range between the 10th and 90th percentile time-weighted average values for the parameter); (3) the proximity of the emission test results to the standard; and (4) the reason for not maintaining the required range. These factors determine whether the operations are reasonably representative of normal operations and how important it may be that test operations be truly representative of normal operations.

Section 63.1207(h) automatically waives the operating parameter limits (OPLs) during subsequent comprehensive performance tests under an approved performance test plan. After promulgation, stakeholders raised two concerns. They believe that: (1) OPLs defined in the Documentation of Compliance should be waived during the initial comprehensive performance test and associated pretesting; and (2) OPLs should be waived during testing and pretesting irrespective of whether the test plan has been approved.

Section 63.1211(d) requires sources to include in the operating record a Documentation of Compliance (DOC) that establishes limits on the operating parameters under § 63.1209 that, based on an engineering evaluation, will ensure compliance with the emission standards. The DOC may be revised at any time prior to submitting the Notification of Compliance. If additional engineering information becomes available that leads sources to conclude that they can operate under less stringent OPLs during the initial comprehensive performance test and demonstrate compliance with the emission standards, the DOC may be revised accordingly. Therefore, we do not believe that additional regulatory language is needed to enable source to operate during pretesting or the initial comprehensive performance test under OPLs less stringent than those identified in the DOC. We specifically request comment on this issue.

Section 63.1207(h) waives the OPLs during performance testing under an approved test plan. We required pretesting and testing operations to be conducted under an approved test plan as a prerequisite for the waiver. This will ensure that operations, when the OPLs are waived, are likely to remain in compliance with the emission standards. In retrospect, however, we acknowledge that stack emissions measurements will be taken during both pretesting (see § 63.1207(h)(2)) and testing. Given that there will be documentation of any exceedance of an emissions standard during a performance test, potentially indicating a violation during such testing, it is not necessary to require that the test plan be approved before the OPLs can be waived. Similarly, if a source records the results of pretesting, the OPLs should be waived without approval of the test plan. Accordingly, we propose to revise the rule to waive the OPLs during pretesting (if the source records the results of the pretest) and performance testing. See proposed § 63.1207(h).

Although stakeholders have raised concerns about testing under an unapproved test plan (see Section VII above), there may be instances where a source may choose to test under such conditions. Consequently, the regulatory revision appears to be warranted.

The final rule requires use of Method 0023A to determine compliance with the dioxin and furan emission standard. See § 63.1208(b)(1). Based on discussions with stakeholders after promulgation of the final rule, we believe it is appropriate to request comment on amending the final rule to allow petitions for the use of Method 23 in lieu of Method 0023A. 15

Method 23 is the Clean Air Act dioxin/furan air emission test method found in 40 CFR Part 60, Appendix A. Method 0023A is the RCRA dioxin/furan air emission test method found in SW-846. 16 The final rule requires use of Method 0023A because this method is the updated version of Method 23. At the time of final rule publication, we believed that the improvements to the updated method warranted use of Method 0023A.

Stakeholders request that we give sources the option to use Method 23 or Method 0023A because: (1) The dioxin/furan standard is based on emissions data that was collected using Method 23 procedures; (2) Method 0023A is more expensive because of additional analytical costs; and (3) Method 0023A results in higher detection limits.

Method 23 and Method 0023A are similar methods. Method 23 combines the front half of the filter and probe rinse with the back half of the sorbent and rinses to perform a single extraction and analysis. Recovery of spiked standards into the sorbent are used to serve as an indicator of overall recovery. Method 0023A differs from Method 23, primarily in that Method 0023A uses the addition of standards to both the filter (front half) and sorbent (back half), and then separates the front half and back half for analysis in order to determine the recovery from each half. They are separated in order to better quantify recoveries for both the back half and front half fractions. This is important, because low recoveries in Method 23 are sometimes associated with dioxin/furan contained in solid phase particulate that may go unnoticed due to the combined front half and back half analysis. This may be of particular importance for sources that use activated carbon injection, or sources whose particulate matter contains significant levels of carbonaceous material. In other words, Method 0023A was designed as an improvement to Method 23 by incorporating separate recovery, spiking, and analysis of front half and back half samples to improve the quality assurance of the front half and back half analysis. The benefits of Method 0023A compared to Method 23 include accurate recovery data and known data quality. The downsides to Method 0023A include higher analytical costs and possibly higher detection limits.

Although the detection limits of Method 0023A may be higher than Method 23 detection limits, we do not believe that these higher detection limits will adversely affect a source's ability to adequately demonstrate compliance with the dioxin/furan standard, as we explained in the technical support document to the final rule. 17 This is true because analytical detection limits have decreased over recent years.

We request comment on whether we should amend the final rule to give the option to use Method 23 in lieu of Method 0023A. We are considering allowing sources to petition the authorized regulatory agency to use Method 23 in lieu of Method 0023A. Under such an approach, a source would have to justify why the use of Method 23 is warranted. Factors that could be considered by the regulatory official in reviewing these petitions include: (1) The carbonaceous content of the particulate that is emitted from the source; (2) analytical costs; (3) data quality; and (4) detection limits. For example, under this approach, we believe that a source could address Method 23 data quality concerns by submitting previous Method 0023A results to the regulatory official that document: (1) The recovery percentages of the front and back half of the analysis; and (2) the amount of dioxin and furans present in the front half. Method 0023A results that indicate good front half recoveries could support a source's claim that Method 23 is an appropriate method to demonstrate compliance with the dioxin/furan emission standard. 18 The added data quality checks associated with Method 0023A may not be needed if the results of previous Method 0023A analyses indicate good front half recovery percentages. Method 23 may also be warranted if dioxin and furans are not detected, or are detected at low levels in the front half of Method 0023A.

Quality data supporting causal, trend, and risk analysis is fundamental to an effective safety program. The importance of data to the hazardous materials transportation safety program was highlighted in both a ONE DOT Flagship Initiative on Hazardous Materials Handling/Incidents (HazMat Flagship) and a recently completed Department-wide Hazardous Materials Program Evaluation (HMPE). The HazMat Flagship identifies the set of new and ongoing actions relating to hazardous materials transportation that has the greatest potential impact on safety and program operation and that benefits from a cooperative ONE DOT approach. Information on DOT's Flagship Initiatives can be found at: http://www.dot.gov/onedot/flagship.htm. The HMPE used a multi-modal team to conduct a Department-wide program evaluation to document and assess the effectiveness of the Department's hazardous materials transportation safety program. The team's final report can be found at: http://hazmat.dot.gov/hmpe.htm.

The hazardous materials transportation safety program relies on DOT Form F 5800.1, Hazardous Materials Incident Report, to gather basic information on incidents that occur during transportation and that meet specified criteria as required in § 171.16 of the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180). RSPA last revised this form in 1989. In 1999, we received roughly 17,500 incident reports. The Research and Special Programs Administration (RSPA, we) use the data and information reported by carriers to:

• Evaluate the effectiveness of the existing regulations and industry operating procedures;

• Determine the need for regulatory changes to cover changing transportation safety problems; and

• Identify major problem areas that should receive priority attention.

In addition, both the government and industry use this information to chart trends, identify problems and training inadequacies, evaluate packagings, and assess ways to reduce releases.

Although the current incident report form provides useful information and is generally recognized as being fundamentally sound, room for improvement exists. Both the HazMat Flagship initiative and the HMPE emphasized the need to obtain more accurate and complete data on incidents. We believe the opportunity exists to obtain better, more detailed information on events with potentially greater consequences; to provide more descriptive information to help determine root causes of events; to offer better linkages so that data can be coupled (for example, registration numbers and fire and police report numbers); and to better structure the report form to facilitate complete and accurate responses.

Our experience using data generated by the current form has identified certain deficiencies. Rulemakings such as HM-225A, “Revision to Regulations Governing Transportation and Unloading of Liquefied Compressed Gases,” and HM-213B, “Safety Requirements for External Product Piping on Cargo Tanks Transporting Flammable Liquids,” have demonstrated the difficulties involved with using DOT Form 5800.1 data to determine precise failure modes and causes. These rulemakings also underscore the unreliability of cost information and the need to update this and other data as better information becomes available after initial submission of the form in the time period prescribed by regulation.

The National Transportation Safety Board (NTSB) has issued a number of recommendations related to data collection and processing developed during the course of their investigations. NTSB Recommendation H-92-6 suggests establishment of a program to collect information necessary to identify patterns of cargo tank equipment failures, including the reporting of all accidents involving a DOT specification cargo tank. Revising DOT Form 5800.1 offers a viable way to implement this recommendation by enabling us to obtain a more complete profile of accident scenarios, including “success stories,” through which packaging integrity issues can be more thoroughly evaluated. We believe gathering such information on all bulk packagings involved in incidents where the packaging, appurtenances, or damage protection devices receive structural damage is a logical extension of this philosophy.

Another example of an NTSB recommendation that can be implemented though revision to DOT Form 5800.1 is ensuring that there is formal feedback from carriers to shippers when an incident has occurred (recommendation R-89-52). The need for this latter recommendation is supported by FAA experience with shippers who have been unaware of packaging failures.

In addition, the National Risk Assessment for Selected Hazardous Materials performed for RSPA by the Argonne National Laboratory and the University of Illinois relied on incident data as a basic input into the study and recommended changes in a number of areas. Risk practitioners in government and industry offered suggestions for improved reporting of incident data in a white paper produced under the auspices of the Transportation Research Board.

Undeclared hazardous materials shipments, particularly in the air mode, are a safety issue of high visibility and concern within the Department. This issue received significant attention in the HazMat Flagship and was recognized by the HMPE as an important area where better understanding of the frequency and impact of such shipments is essential. Data obtained through reporting of discoveries of such shipments, whether or not the material is released, can help in defining the extent of the problem and developing programs to mitigate the risk involved. DOT Form 5800.1 is an efficient way to capture this data. Such data, even though it represents only undeclared hazardous materials that are discovered rather than the full spectrum of undeclared hazardous material shipments, can play a significant role in monitoring trends and measuring the effects of efforts to reduce undeclared shipments.

We are cognizant of the burden often imposed by regulatory requirements. As we develop proposed changes to the incident reporting requirements, we are seeking to minimize any additional burden associated with the revised requirements. For instance, we are proposing to add exceptions to reporting requirements for small releases of materials that pose the least hazard where sufficient data already exists to manage risk. Further, we believe certain data fields that ask for information that is obtainable from other sources can be deleted. Land use at the incident site is an example of the latter case.

As part of early efforts to consider possible revisions and following a meeting between DOT and members of several trade associations concerning hazardous materials incident reporting, the Association of American Railroads sponsored a workgroup with segments of the transportation community to discuss the DOT Form F 5800.1 and reporting requirements of §§ 171.15 and 171.16. The workgroup meetings were held during the winter of 1997-98. Participants included representatives of all four transportation modes and RSPA, shippers, container manufacturers, and labor. The workgroup drafted suggestions and submitted them to RSPA. We developed questions based on input from these meetings, the DOT modal agencies, and other concerned individuals, and on our own initiative.

On March 23, 1999, we published an advance notice of proposed rulemaking (ANPRM; 64 FR 13943) that asked a series of questions regarding the need to change the current reporting requirements or the current incident report form. We received approximately 40 comments from industry associations, state and local governments, non-profit associations, and carriers. These comments are discussed in Section III of this preamble.

Currently, § 171.15 requires carriers to immediately notify the National Response Center (NRC) after any incident that occurs during transportation in which, as a direct result of hazardous materials:

(1) A person is killed;

(2) A person receives injuries requiring hospitalization;

(3) Estimated carrier or other property damage exceeds $50,000;

(4) An evacuation of the general public occurs for one hour or more;

(5) One or more major transportation arteries or facilities are closed for one hour or more;

(6) The operational flight pattern or routine of an aircraft is altered;

(7) Fire, breakage, spillage, or suspected radioactive contamination occurs involving shipments of radioactive material or infectious substances;

(8) There has been a release of a marine pollutant in a quantity exceeding 450 L (119 gallons) for liquids or 400 kg (882 pounds) for solids; or

(9) A situation exists of such a nature (e.g., a continuing danger to life exists at the scene of the incident) that, in the judgment of the carrier, it should be reported to the Department even though it does not meet any other immediate notification criteria.

Carriers may report any of these incidents involving aircraft to the Federal Aviation Administration (FAA). In addition, certain incidents involving infectious substances must be reported to the Centers for Disease Control (CDC).

Each carrier required to make a report under § 171.15 is also required to complete DOT Form F 5800.1 in accordance with § 171.16. Additionally, unless excepted, a carrier is required to submit DOT Form F 5800.1 for any incident occurring during transportation that results in an unintentional release of a hazardous material from its package or the discharge of any quantity of hazardous waste.

We use the data and information reported by carriers to:

(1) Evaluate the effectiveness of the existing regulations and industry operating procedures;

(2) Determine the need for regulatory changes to cover changing transportation safety problems; and

(3) Identify major problem areas that should receive priority attention.

In considering how to update the incident report form, our primary objective is to ensure that useful information is captured in an efficient manner. We believe it is possible to improve the structure and format of the form to make it easier to understand and complete accurately. To reduce the reporting burden on persons responsible for completing the incident report, we believe certain existing fields that ask for information that is obtainable from other sources can be deleted. Land use at the incident site is an example. We also believe it is appropriate to add information in certain areas where it can help determine future program direction and support measures of program effectiveness. For example, a good description of packaging performance, documenting both failures and successes, helps us define future requirements. In addition, undeclared hazardous materials is a problem area of significant safety concern to DOT, and the ability to identify the frequency and source of such shipments is important in efforts to reduce their occurrence. A complete description of changes to the content of the form is provided in the following sections.

The major changes proposed by RSPA in this NPRM include:

(1) collecting more specific information on the incident reporting form;

(2) expanding reporting exceptions;

(3) expanding reporting requirements to persons other than carriers;

(4) reporting undeclared shipments of hazardous materials;

(5) notifying shippers of incidents; and

(6) reporting non-release incidents involving bulk packages.

These and other proposals are discussed in detail in the following paragraphs.

In the ANPRM, we posed 35 questions concerning possible revisions to DOT Form F 5800.1 and the associated sections of the HMR. These 35 questions are grouped into the following ten general issues:

(1) Electronic filing

(2) Revisions to the form

(3) One-call reporting

(4) Expansion of reporting requirements to persons other than carriers

(5) Exceptions to incident reporting

(6) Criteria for telephonic notification

(7) Updates to reports

(8) Reporting when no hazardous material is released during an incident

(9) Undeclared shipments of hazardous materials that do not result in a release

(10) Notifying shippers of incidents.

1. Electronic filing. The ANPRM noted that we are considering optional filing of incident reports by facsimile (fax), electronic mail (e-mail), and the Internet, and asked for recommendations concerning implementation of an electronic filing option. Electronic filing of incident reports is consistent with the requirements of the Government Paperwork Elimination Act (GPEA), which generally mandates that, by October 2003, agencies accept electronic documents and electronic signatures for the transactions that they conduct with the public and regulated parties.

All commenters support an electronic filing option. Commenters state that fax, e-mail, and Internet submissions should be available to facilitate reporting. However, commenters also state that electronic filing should be optional rather than mandatory.

We agree that electronic filing of incident reports would reduce the reporting burden on industry and increase reporting flexibility. However, because of logistical difficulties, all means of electronic filing will not be immediately available. In this NPRM, we are proposing to accept incident reports by fax and e-mail. Concurrent with the continued development of this rulemaking action, we intend to develop a capability to receive incident report forms through additional electronic means, such as a web-based form and electronic file transfers.

2. Revisions to the form. We received a number of comments concerning the format of the current DOT Form F 5800.1. Some commenters suggest that we develop a different form for each mode or packaging type. Commenters also state that an abbreviated form would be useful for reporting smaller incidents.

We agree that more detailed information concerning specific modes of transportation or specific packaging types would improve our incident database. However, we believe that having more than one incident report form would be confusing to the regulated industry. Therefore, in this NPRM, we are proposing a single multi-section form. Reporting incidents on a single form will avoid confusion as to which form to submit. The proposed form includes “General Incident Information,” “Consequences,” and “Packaging Information” sections that would be completed by everyone reporting an incident. In addition, the proposed form includes modal or special information sections that would be completed only if certain conditions were met.

In considering how to update the incident report form, our primary objective is to ensure that useful information is captured in an efficient manner. We believe it is possible to improve the structure and flow of the form to make it easier to understand and complete accurately. We are proposing to delete certain existing fields that ask for information that is obtainable from other sources or can be extrapolated from other fields. We believe the fields “Is material a hazardous substance?,” “Was the RQ met?,” and the “Land Use and Community Type” questions fall into this category. Similarly, the “Highway Type” and “Number of Lanes at a Vehicle Accident/Derailment site” can be determined from other sources. In addition, the consignee name and address information and the type of labeling or placarding fields have been found to offer limited benefit to safety improvements, and we propose to remove them.

Additional information in certain areas is needed to help determine future program direction and support measures of program effectiveness. Separate fields for information on packing group, hazardous wastes and toxic by inhalation materials would allow us to better identify the materials involved in incidents. Further, we believe the inclusion of cross-reference fields, such as the NRC report number and the Hazardous Materials registration number, will help broaden the ties the incident data has with other Federal hazardous materials data.

We also believe gathering additional information on the types of persons who respond to incidents, the types of persons who are killed, injured or need to be evacuated, as well as how long evacuations or closures last, will contribute to incident risk analysis. The more detailed questions concerning air transport incidents and questions directed to specific types of packagings will allow for more focused review of where and how packages fail. Additionally, the ability to identify the frequency and source of undeclared hazardous materials shipments, an area of significant safety concern to DOT, is important to reducing their occurrence.

We are also proposing to revise the packaging sections of the incident report form to eliminate duplicative and confusing formatting and to enable us to gather more specific packaging information. For example, we propose to replace check boxes to identify damage to packagings with failure codes specific to each packaging type. Use of failure codes was one of the recommendations coming from the Association of American Railroads workgroup discussed in Section I. Use of failure codes allows the preparer to select from a set of choices appropriate to the particular packaging type involved. Also, we believe use of terminology appropriate for the particular packaging type will help avoid confusion and ultimately make it easier for the preparer to complete the incident report.

The expansion will add about 15 data fields to the basic incident information. We believe the benefits to be gained by collecting more detailed information will require only minimal additional time to report these mostly short yes/no or fill-in-the-blank fields. Further, we have reformatted the proposed incident report form to facilitate completion (e.g., more white space and a more logical flow from item to item). While this reformatting has added more pages to the form, we believe that this design will improve accuracy and make the form easier to complete.

The draft of the form that appears in the appendix to this NPRM is for review of question format and content only and does not reflect the final layout of the actual form. We anticipate that the form layout will be similar to the most recent U.S. Census form, which included proper spacing for digital scanning and ease of use considerations.

The proposed revised form is included as Appendix A to this NPRM. The proposed instructions for completing the form appear as Appendix B. We ask that reviewers of the proposed incident report form focus on the following questions related to the contents of the form: (1) are critical data elements missing that should be added?; (2) what data elements currently included on the form are candidates for elimination?; (3) do the failure codes accurately represent modes of packaging failure?; and (4) what are your suggestions for additional or more descriptive failure codes?

3. One-call reporting. As provided by § 171.15, certain incidents require immediate telephonic notification. Currently, except for incidents involving transportation by aircraft or releases of infectious substances, carriers are required to call the NRC. Notice involving air shipments of hazardous materials must be given to the nearest FAA Civil Aviation Security Office. Notification of incidents involving infectious substances may be made to the CDC rather than the NRC.

In this NPRM, we are proposing to eliminate the separate telephonic notification requirement for air shipments and to require all air carriers to report incidents subject to § 171.15(a) to the NRC. NRC would then make any subsequent notifications. NRC personnel are trained specifically as to which notification requirements pertain to which entities; thus, this change should result in more accurate notification to parties with a need to know. It should be noted that CDC continues to require telephonic notification for releases of infectious substances (etiologic agents). In another rulemaking (Docket No. RSPA-98-3971, HM-226, 66 FR 6942, January 22, 2001), we are proposing to clarify that a written report of an incident involving an infectious substance that is reported by telephone to CDC must also be submitted to RSPA.

4. Expansion of reporting requirements to persons other than carriers. Currently, the requirements for telephonic and written reporting of transportation incidents apply to carriers only. Operators of transportation facilities, such as marine terminals, who do not perform carrier functions are not required to report transportation incidents involving hazardous materials. Most commenters to the NPRM agree that the person in physical control of a hazardous material when an incident occurs during transportation should be responsible for reporting that incident. One commenter states that the person in control of a hazardous material during transportation would most likely be the person most knowledgeable about the circumstances surrounding the incident. Other commenters disagree, stating that confusion and duplicative reporting would likely result if incident reporting is required by persons other than carriers.

We agree that the person in direct control of the hazardous material while it is being transported in commerce should report any incidents. Such a requirement would capture incidents that occur when a hazardous material is outside a carrier's direct possession, but while the material is still in transportation in commerce, such as while the material is being stored incident to movement at a transfer facility.

Therefore, in this NPRM we are proposing to require each person in physical control of a hazardous material while it is in transportation in commerce to report any incident that occurs while the material is in his or her possession. For example, a temporary storage facility owner would have to report any event that meets the provisions of §§ 171.15 or 171.16 and that occurs during the time that a hazardous material is stored incident to movement. Consistent with current HMR requirements, administrative determinations, and interpretations, storage incidental to movement is storage of a transport vehicle, freight container, or package containing a hazardous material between the time that a carrier takes possession of the hazardous material until it is delivered to its destination, as indicated on the shipping paper. We believe this proposal will provide more accurate and complete information regarding hazardous materials incidents. We estimate that extending reporting requirements to persons in physical control of a hazardous material during transportation would increase the number of incident reports by about 2,040 per year.

In addition, we are proposing to revise § 171.21 to require “the person responsible for reporting the incident,” rather than the “carrier,” to make available all records and information pertaining to the incident.

5. Exceptions to incident reporting. Currently, the HMR provide exceptions to incident reporting for the following:

(1) Consumer commodities;

(2) Batteries, electronic storage, wet, filled with acid or alkali; and

(3) Paint and paint-related materials when shipped in packagings of five gallons or less.

In addition, hazardous materials prepared and transported as limited quantities in accordance with the HMR are excepted from incident reporting requirements. However, these exceptions do not apply to:

(1) Incidents required to be reported under § 171.15(a);

(2) Incidents involving transportation aboard aircraft;

(3) Materials in Packing Group I (except for consumer commodities); or

(4) Incidents involving the transportation of hazardous waste.

Most commenters support expansion of the current exceptions to incident reporting. One commenter suggests that exceptions be expanded to include all incidents involving loading and unloading where a small release occurs as a result of connecting and disconnecting hoses or transfer lines. Other commenters suggest that hazardous materials in smaller packagings (e.g., 5 gallons or less) be excepted from incident reporting.

We agree that exceptions to incident reporting should be applicable to small amounts of most hazardous materials that fall into our lowest risk category of hazardous materials (PG III). We now have ample data from past incidents spanning over 20 years involving PG III hazardous materials in smaller packagings to warrant a reporting exception. Incident reporting should be focused on more substantial releases where the consequences of an incident may be significant.

In this NPRM, we are proposing to except from incident reporting requirements hazardous materials incidents meeting all of the following criteria:

(1) The shipment is not being offered for transportation or transported by air;

(2) None of the criteria in § 171.15(a) apply;

(3) The material is not a hazardous waste;

(4) The material is properly classed as—

(i) ORM-D; or

(ii) A packing Group III material in Class or Division 3, 4, 5, 6.1, 8, or 9;

(5) Each packaging has a capacity of less than 20 liters (5 gallons) for liquids or less than 30 kg (66 pounds) for solids; and

(6) The total aggregate release is less than 20 liters (5 gallons) for liquids or less than 30 kgs (66 pounds) for solids.

(7) The material does not meet the definition of an undeclared hazardous material in § 171.8.

We are proposing to except small spills from the reporting requirements. We wanted only to require that an aggregate spill of 20 liters (5 gallons) or over for liquids or 30 kg (66 pounds) or over for solids of otherwise excepted hazardous materials be reported. For example, if twelve 5-gallon containers of paint are spilled, no incident report would be required unless the aggregate amount of paint released from the twelve containers is over 5 gallons or one of the conditions in § 171.15(a) is met. Based on reports received over the past five years, we expect that the proposed exceptions would reduce the total number of incident reports filed each year by about 5,000.

In addition, we are proposing to clarify existing rules to except minimal amounts of hazardous materials escaping: (1) due to disconnecting a loading or unloading line or from the operation of venting devices (for which venting is authorized); or (2) from the manual operation of seals in equipment such as pumps, compressors, and valves during the normal course of transportation if the release does not trigger any of the provisions for a telephonic notification described in § 171.15 of this subpart and does not result in property damage.

We are requesting comments regarding additional exceptions or alternative methods for excepting small spills from the reporting requirements. We may modify the proposed exception in response to such comments.

6. Criteria for telephonic notification. Under current § 171.15 requirements, one of the criteria that triggers the requirement for immediate notification is property damage that exceeds $50,000. Most commenters agree that a monetary limit should not be used as a criterion for telephonic notification; they state that such a limit is arbitrary and has not been adjusted to reflect inflation. We agree and are proposing to remove the monetary criterion.

We are also proposing to clarify the requirements for “immediate notification” by specifying that telephonic notification must be made as soon as practicable following the occurrence of an incident and in all instances within 12 hours after an event requiring notification. This eliminates confusion surrounding the term “immediate notification.” This proposed revision also responds to National Transportation Safety Board (NTSB) recommendation H-99-58 to provide a specific time period to report by telephone. We invite comments as to the appropriateness of this time period or a different time period (e.g., 2 hours, 4 hours, or 24 hours).

In addition to the above, we propose to expand the telephonic notification reporting requirements to the person who has physical control of the material at the time of the transportation incident. Most commenters agree that the person in physical control of a material at the time of an incident should call the NRC.

Commenters also suggest that incidents resulting in significant environmental damage and incidents involving certain high-hazard materials be added to the current criteria for telephonic notification. We believe that the current criteria requiring immediate telephonic notification are sufficient and are not proposing any additional criteria.

7. Updates to reports. Commenters disagree about whether we should require updates to incident reports. Some commenters suggest that we develop criteria to identify when an incident report requires updating. Other commenters state that updates should be required when there is any change to an incident result.

We believe that substantive changes to the outcome of an incident should be updated by submitting updates to the original DOT Form F 5800.1 report. Updated information ensures the accuracy and quality of data we collect. In this NPRM, we propose to require updated incident reports for up to one year after the date of an incident for the following: (1) death resulting from injuries caused by a hazardous material; (2) corrections to the identification of the hazardous material or packaging information; and (3) certain updated damage costs as additional information becomes available. Cost information would be updated when: (1) costs not known at the time the report was filed became known; or (2) original damage/cost estimates were revised by more than $25,000. In some cases, certain costs (such as decontamination and cleanup) may not be known within 30 days of the incident's occurrence, and would not be included in the initial incident report. In other cases, some costs (such as property damage) may be significantly higher than the original estimate. We estimate that about 800 incidents reported each year would require an update.

Under § 171.21, persons required to report an incident are required to cooperate with any further investigation of that incident. In particular, incidents that we categorize as significant may require further investigation, or reports that are incomplete may require a follow-up.

8. Reporting when no hazardous material is released during an incident. In the ANPRM, we asked whether the incident reporting requirements should be expanded to include certain incidents that do not result in release of a hazardous material. We suggested that such information could provide a broader base for risk management in more critical transportation situations and that additional information could be used to gauge the performance and integrity of certain packagings.

Most commenters oppose data collection for an incident that does not result in a release of hazardous materials because of the increased reporting burden. We do not agree. We believe that certain incidents should be reported whether or not there is a release of hazardous material. The potential burden on operators is offset by the safety information that will be provided. For example, such reporting can provide information concerning packaging integrity, particularly the circumstances under which a packaging is able to withstand a collision or accident without releasing its contents. Thus, we are proposing to require an incident report when a bulk packaging (other than a tank car tank) has received structural damage to the lading retention system or damage that requires repair to systems intended to protect the lading retention even if no hazardous material is released. This responds to NTSB recommendation H-92-6, which requests that we collect information on cargo tanks involved in accidents with no release of a hazardous material. There is no need to collect such data for a tank car tank because this information is already required to be reported to the Federal Railroad Administration. We also propose to include Type B packagings (for radioactive materials) that have received structural damage that may adversely affect the packaging's ability to retain lading, even if no hazardous material is released, to gather statistical information compatible with our criteria for a significant incident.

9. Undeclared shipments of hazardous materials that do not result in a release. Undeclared shipments, particularly when offered for transportation or transported by air, pose a significant safety problem because of the potential for improper packaging, handling, and failure to communicate the hazard. Emergency responders and transportation workers are unaware of the presence of undeclared hazardous materials. Certain hazardous materials that are forbidden for air transportation may make their way onto a passenger-carrying or cargo-only aircraft, and may inadvertently be handled in an unsafe manner by transportation workers. In a hazardous material release from an undeclared shipment, the crew does not know that a hazardous material is present or what response measures to take. Commenters support gathering information on undeclared shipments of hazardous materials that do not result in a release. However, the commenters are divided as to how we should gather this information. Some commenters state that a reporting requirement specific to undeclared hazardous materials would expose their companies to undue liability and possible enforcement actions for accepting an undeclared shipment. Other commenters state that this requirement would place carriers in an enforcement role.

We believe that information on undeclared shipments should be collected and that the incident report form is the most accessible method for collecting such data. In this NPRM, we are proposing to require an incident report when an undeclared shipment of hazardous materials is discovered. This requirement would apply to parties who are likely to discover undeclared shipments and who would benefit greatly from a reduction in such shipments, which is a goal of this rulemaking. Based on information provided by FAA, we anticipate that an increase of about 1,500 incident reports per year would result from this proposal.

If persons filing these reports had no reason to believe that they were accepting hazardous materials, DOT would not hold them responsible. Parties filing these reports would be advising DOT of unsafe conditions; DOT would independently determine whether enforcement is appropriate.

10. Notifying shippers of incidents. We propose to require the person responsible for completing an incident report to provide a copy of the report to the shipper whose packages were the subject of the report. The report would have to be provided within 30 days of the incident and may be provided in an electronic or written form. The 30-day time period is consistent with the time required to submit the report to RSPA. This proposal responds to NTSB Recommendation R-89-52, which recommends requiring carriers reporting hazardous materials incidents under the provisions of § 171.16 to notify shippers whose hazardous materials shipments are involved. NTSB is concerned that shippers are not receiving information about packages that are prone to failure during transportation. Since we are proposing to expand reporting requirements to persons other than carriers who have possession of a hazardous material while in transportation, the person required to report would also be required to notify the shipper of the packages involved in the incident.

We believe that this shipper notification already often occurs; however, we request comments concerning the costs of, and need to create, a requirement to assure that shippers are notified when their packages are involved in incidents.

We are proposing new definitions in § 171.8 for “unintentional release,” and “undeclared hazardous material shipment” to assist in clarifying the regulations.

We are proposing removal of the requirement in § 171.16 to attach a hazardous waste manifest to the incident report form when a release involves a hazardous waste. The proposed incident report form requires the hazardous waste manifest number to be reported and provides a field for entering the number. In addition, we are proposing to remove the requirements for: 1) an estimate of the quantity of waste removed from the scene; 2) the name and address of the facility to which it was taken; and 3) the manner of disposition of any removed waste. This information is already available as a result of EPA's hazardous waste manifest regulations; thus, continued reporting of this information to RSPA is unnecessary. Removing these requirements would eliminate reporting information that is obtainable through other sources.

In this NPRM, we are proposing to require that the report be retained at either the reporter's principal place of business or other record retention site provided the report is available at the reporter's principal place of business within 24 hours of request. Currently, there is a provision in § 171.16 that requires a person reporting an incident to retain a copy of the report for two years at the reporter's principal place of business or at another place that has been authorized under the terms of an approval. We are not aware of any approvals issued under this section. We believe this proposal would provide flexibility in maintaining records without the need for an approval from DOT.

The Federal Motor Carrier Safety Administration (FMCSA) has notified RSPA of several fatalities that have occurred in registered cargo tank facilities during inspection and repair of DOT specification cargo tanks. In most cases, the cause of the incident was a failure to comply with the HMR requirements applicable to such operations (inadequate training programs, failing to clean and purge a tank before repair, etc.) Over the course of the last several years, FMCSA has attempted to gather anecdotal evidence to determine the frequency of these events. It appears that up to 10 fatalities a year may occur due to work on DOT specification cargo tanks. Because of the apparent frequency and severity of these incidents, we are interested in collecting information on these occurrences.

We request comments regarding the following:

1. Should we require the reporting of incidents that occur at registered cargo tank facilities during the inspection, testing and repair process?

2. Is this information available from other sources, such as the Occupational Health and Safety Administration or state worker protection agencies?

3. What incidents should be reported—only consequential incidents, such as those requiring telephonic reporting under § 171.15, any release requiring reporting under § 171.16, or some other criteria?

4. Should we collect information on incidents that occur while work is performed on DOT specification cargo tanks, all specifications packages or all hazardous materials packages?

Any action based on these questions would be considered in a future rulemaking.

In addition, we were contacted by a state official, who requested that we require incidents meeting the immediate notification criteria in § 171.15 to be reported to the state in which the incident occurred. We do not believe that this is necessary. A state may require immediate, oral accident/incident reports for emergency response purposes. Further, any state may request that NRC notify it of incidents occurring within the state.

We are proposing, among others, the following changes to the current HMR reporting requirements and to DOT Form F 5800.1:

(1) Reporting of incidents involving bulk packagings (other than tank car tanks) that receive structural damage that may adversely affect the packaging's ability to retain lading even when no hazardous material is released. (This includes Type B RAM packagings.)

(2) Reporting discoveries of undeclared hazardous material shipments.

(3) Updating incident reports when significant new information becomes available.

(4) Requiring the person in physical control of a hazardous material during transportation to report an incident.

(5) Excepting small releases of specified materials that pose the least hazard from reporting requirements.

(6) Restructuring the form to utilize failure codes to obtain information on packaging failures.

In addition, we are requesting specific comments in the following areas:

(1) What changes should be made in report content (specific data elements) and in failure codes?

(2) Are additional exceptions or alternative methods for excepting small spills from the reporting requirements appropriate?

(3) Is a 12-hour maximum an appropriate standard for “immediate” telephonic reporting or is a different time period ( e.g. , 2 hours, 4 hours, or 24 hours) warranted?

(4) What would be the impact if the proposal to create a requirement assuring that shippers are notified (including possible telephonic notification) when their packagings are involved in incidents is adopted?

(5) Should we require the reporting of incidents that occur at registered cargo tank facilities during the inspection, testing, and repair process? (Also see related questions in the previous section.)

This proposed rule is not a significant regulatory action under Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This proposed rule is not a significant regulatory action under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). A preliminary regulatory evaluation that considers various regulatory alternatives is available for review in the public docket.

The costs of these proposed regulations identified in the regulatory evaluation are attributed to: (1) Expansion of reporting requirements to persons other than a carrier in possession of a hazardous material during transportation; (2) implementation of a requirement to update incident reports under certain conditions; (3) expansion of reporting requirements to incidents involving certain bulk packagings where no hazardous material is released; and (4) implementation of a requirement to report to the shipper that an incident has occurred. Reductions in the total costs associated with incident reporting requirements are attributed to implementation of an electronic filing option and expansion of current exceptions to the reporting requirements. The expected reductions in total costs generally offset the anticipated cost increases; thus, the proposals should result in only minimal increased costs of compliance.

While it is difficult to estimate the net benefit resulting from this rulemaking, we believe that the proposed revisions to the incident reporting requirements will greatly enhance our ability to develop strategies to reduce the risks associated with the transportation of hazardous materials. The non-quantifiable benefits of the increase in data quality attributable to this rulemaking are expected to be far greater than the negligible cost increase to the regulated community.

This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This proposed rule would preempt State, local, and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous materials transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:

(1) The designation, description, and classification of hazardous materials;

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;

(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or

(5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This proposed rule addresses covered subject item number 4 above and would preempt State, local, and Indian tribe written incident reporting requirements not meeting the “substantively the same” standard.

Federal hazardous materials transportation law provides at § 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. We propose that the effective date of Federal preemption be 180 days from publication of a final rule in this matter in the Federal Register .

This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications and does not impose substantial direct compliance costs, the funding and consultation requirements of the Executive Order do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. Based on the assessment in the final regulatory evaluation, I hereby certify that, while the final rule will affect a substantial number of small businesses, there will be no significant economic impact.

Potentially affected small entities. The proposals in this NPRM will apply to persons in physical control of a hazardous material during transportation in commerce. Such persons primarily include motor carriers, air carriers, vessel operators, rail carriers, temporary storage facilities, and intermodal transfer facilities. Unless alternative definitions have been established by the agency in consultation with the Small Business Administration, the definition of “small business” has the same meaning as under the Small Business Act (15 CFR Parts 631-657c). Therefore, since no such special definition has been established, RSPA employs the thresholds (published in 13 CFR 121.201) of 1,500 employees for air carriers (NAICS Subgroup 481), 500 employees for rail carriers (NAICS Subgroup 482), 500 employees for vessel operators (NAICS Subgroup 483), $18.5 million in revenues for motor carriers (NAICS Subgroup 484), and $18.5 million in revenues for warehousing and storage companies (NAICS Subgroup 493). Of the approximately 116,000 entities to which the proposals in this NPRM would apply (104,000 of which are motor carriers), we estimate that about 90 percent are small entities.

Potential cost impacts. The NPRM proposal to expand reporting requirements to any person in physical possession of a hazardous material while it is being transported in commerce will primarily affect storage and intermodal transfer facilities. We estimate that expanding the reporting requirements will increase the number of incident reports submitted each year by about 2,040 reports, or about 12 percent. Thus, the approximately 6,500 warehousing and storage entities subject to this requirement will incur total increased compliance costs of about $84,000 (about $13/year/company).

The proposal to require updating of incident reports under certain conditions applies to all persons subject to the HMR incident reporting regulations. We estimate that this proposal will result in about 800 updates to reports each year for a total annual cost to the approximately 116,000 transportation companies subject to this requirement of $4,800 (about 4¢/year/company).

The proposal to require reporting of certain incidents involving bulk packagings that do not result in a release of hazardous materials will apply to about 104,000 motor carriers. We estimate that this proposal will result in about 2,800 additional incident reports each year. Motor carriers will incur increased compliance costs of about $109,000 (about $1.05/year/company).

The proposal to require reporting of undeclared shipments of hazardous materials discovered during transportation will apply to all persons subject to the HMR incident reporting regulations. We estimate that this proposal will result in an increase of 1,500 incident reports per year, with corresponding increased compliance costs of $57,600 (about 50¢/year/company).

The proposal to require persons who are subject to the HMR incident reporting requirements to also report incidents to the hazardous material shipper will apply to all persons subject to the HMR incident reporting regulations. We estimate that this proposal will result in an increase in compliance costs of about $17,000 (about $1.20/year/company).

Potential cost savings. The proposals in the NPRM that will permit electronic filing of incident reports and expand the current exceptions from incident reporting requirements will offset the increased compliance costs described above. Taken together, the potential cost savings attributable to the proposals in this NPRM total about $276,000 (about $2.40/year/company).

Alternate proposals for small businesses. The Regulatory Flexibility Act suggests that it may be possible to establish exceptions and differing compliance standards for small businesses and still meet the objectives of the applicable regulatory statutes. However, given the importance of small business, as defined for purposes of the Regulatory Flexibility Act, in hazardous materials transportation, we do not believe that it would be possible to establish such differing standards and still accomplish the objectives of federal hazardous materials transportation law. The information provided in hazardous materials incident reports serves as the basis for critical RSPA safety functions, including identification of safety problems, regulations development, training programs, outreach efforts, and enforcement strategies. The risks posed by a hazardous material offered for transportation or transported by a small entity are the same as the risks posed by the same hazardous material when offered for transportation or transported by a large entity. Thus, it is entirely reasonable and appropriate for the HMR incident reporting requirements to apply equally to any person who offers for transportation or transports hazardous materials in commerce.

Conclusion. Based on the above analysis, we certify that while the proposals in this NPRM will affect a significant number of small businesses or other small entities, there will be no substantial economic impact on the identified classes of small businesses. If your business or organization is a small entity and if adoption of some or all of the proposed provisions could have a significant economic impact on your operations, please submit a comment to explain how and to what extent your business or organization could be affected.

Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid Office of Management and Budget (OMB) control number. Section 1320.8(d), Title 5, Code of Federal Regulations requires that RSPA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. RSPA has a current information collection approval under OMB No. 2137-0039, Hazardous Materials Incident Reports, with 33,811 burden hours, $811,221.66 in annual costs, and 22,500 submitted incident reports per year. This information collection estimate, drafted in 1998, accounted for a 40% increase in incident reporting due to inclusion of intrastate carriers required to report incidents under the HM-200 rulemaking docket. The actual rate of increase attributed to that rulemaking has not been fully realized.

The average number of incident reports RSPA received for the years 1997-2000 is about 17,300, and for the years 1995-2000 is about 16,000. Our regulatory evaluation for this proposed rule uses a base number of 17,000 annual incident reports.

The proposals in this NPRM would only change information collection requirements for the DOT Form F 5800.1 under § 171.16—and not for telephonic notification requirements under § 171.15.

RSPA believes that this proposed rule may result in a modest increase in annual burden and costs. Even so, the estimated increase of an additional 810 reports per year proposed in this NPRM would result in total reports numbering far less than the 22,500 approved through our current information collection approval under OMB No. 2137-0039. Total estimated costs of written reports, including the estimated costs of this proposed rule, are also lower than the approved amount. The following figures are based on receiving 17,000 incident reports per year and only include estimates for written incident reports:

Total Annual Respondents: 1,781.

Total Annual Responses: 17,810.

Total Annual Burden Hours: 23,746.

Total Annual Burden Cost: $569,904.

RSPA specifically requests comments on the information collection and recordkeeping burdens associated with developing, implementing, and maintaining these requirements for approval under this proposed rule.

Requests for a copy of the information collection should be directed to Deborah Boothe, Office of Hazardous Materials Standards (DHM-10), Research and Special Programs Administration, Room 8102, 400 Seventh Street, SW., Washington, DC 20590-0001, Telephone (202) 366-8553.

Written comments should be addressed to the Dockets Unit as identified in the ADDRESSES section of this rulemaking. Comments should be received prior to the close of the comment period identified in the DATES section of this rulemaking. Under the Paperwork Reduction Act of 1995, no person is required to respond to an information collection unless it displays a valid OMB control number.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

This rulemaking would not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector.

RSPA believes that the proposed changes to the incident reporting system would have no significant impact on the environment. The changes proposed in this NPRM should increase the quality of data collected on hazardous materials spills, thus probably increasing our ability to evaluate potential packaging problems that result in releases to the environment. Thus, the proposed revisions should produce a small net benefit to the environment by improving the data sources used in regulatory development. Therefore, we find that there are no significant environmental impacts associated with this proposed rule.

In consideration of the foregoing, we propose to amend 49 CFR part 171 as follows:

Section 610 of the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires agencies to conduct periodic reviews of final rules that have a significant economic impact on a substantial number of small business entities. The purpose of the reviews is to determine whether such rules should be continued without change, amended, or rescinded, consistent with the objectives of applicable statutes, to minimize any significant economic impact of the rules on a substantial number of such small entities.

The Department of Transportation (DOT) published its Semiannual Regulatory Agenda on November 22, 1999, listing in Appendix D (64 FR 64684) those regulations that each operating administration will review under section 610 during the next 12 months. Appendix D also contains DOT's 10-year review plan for all of its existing regulations.

The National Highway Traffic Safety Administration (NHTSA, “we”) has divided its rules into 10 groups by subject area. Each group will be reviewed once every 10 years, undergoing a two-stage process-an Analysis Year and a Review Year. For purposes of these reviews, a year will coincide with the fall-to-fall publication schedule of the Semiannual Regulatory Agenda. Thus, Year 1 (1998) began in fall of 1998 and ends in the fall of 1999; Year 2 (1999) begins in the fall of 1999 and ends in the fall of 2000; and so on.

During the Analysis Year, we will request public comment on and analyze each of the rules in a given year's group to determine whether any rule has a significant impact on a substantial number of small entities and, thus, requires review in accordance with section 610 of the Regulatory Flexibility Act. In each fall's Regulatory Agenda, we will publish the results of the analyses we completed during the previous year. For rules that have subparts, or other discrete sections of rules that do have a significant impact on a substantial number of small entities, we will announce that we will be conducting a formal section 610 review during the following 12 months.

The section 610 review will determine whether a specific rule should be revised or revoked to lessen its impact on small entities. We will consider: (1) The continued need for the rule; (2) the nature of complaints or comments received from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other federal rules or with state or local government rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. At the end of the Review Year, we will publish the results of our review.

The schedule has been revised from its listing in the Semiannual Regulatory Agenda on November 22, 1999. A major revision to Parts 591 through 594 has been proposed. Thus, we deemed it appropriate to delay our small business impact review of these parts from year 3 to year 8, and move the other regulations forward one year.

The following table shows the 10-year analysis and review schedule:

During Year 3 (2000), the Analysis Year, we will conduct a preliminary assessment of the following sections of 49 CFR part 571:

We are seeking comments on whether any requirements in §§ 571.101 through 571.110 and 571.135 have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. Business entities are generally defined as small businesses by Standard Industrial Classification (SIC) code, for the purposes of receiving Small Business Administration (SBA) assistance. Size standards established by SBA in 13 CFR 121.201 are expressed either in number of employees or annual receipts in millions of dollars, unless otherwise specified. The number of employees or annual receipts indicates the maximum allowed for a concern and its affiliates to be considered small. If your business or organization is a small entity and if any of the requirements in §§ 571.101 through 571.110 and 571.135 have a significant economic impact on your business or organization, please submit a comment to explain how and to what degree these rules affect you, the extent of the economic impact on your business or organization, and why you believe the economic impact is significant.

If the agency determines that there is a significant economic impact on a substantial number of small entities, it will ask for comment in a subsequent notice during the Review Year on how these impacts could be reduced without reducing safety.

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?

• Are the requirements in the rule clearly stated?

• Does the rule contain technical language or jargon that is not clear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rule easier to understand?

If you have any responses to these questions, please include them in your comments on this document.

In conjunction with our section 610 reviews, we will be performing plain language reviews over a ten-year period on a schedule consistent with the section 610 review schedule. We will review §§ 571.101 through 571.110 and 571.135 to determine if these regulations can be reorganized and/or rewritten to make them easier to read, understand, and use. We encourage interested persons to submit draft regulatory language that clearly and simply communicates regulatory requirements, and other recommendations, such as for putting information in tables that may make the regulations easier to use.

Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

Your comments must not be more than 15 pages long. (49 CFR 553.21.) We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES.

Comments may also be submitted to the docket electronically by logging onto the Docket Management System website at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing your comments electronically.

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.)

We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES . To the extent possible, we will also consider comments that Docket Management receives after that date.

You may read the comments received by Docket Management at the address given above under ADDRESSES. The hours of the Docket are indicated above in the same location.

You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

(1) Go to the Docket Management System (DMS) Web page of the Department of Transportation (http://dms.dot.gov/).

(2) On that page, click on “search.”

(3) On the next page (http://dms.dot.gov/search/), type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-1998-1234,” you would type “1234.” After typing the docket number, click on “search.”

(4) On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. However, since the comments are imaged documents, instead of word processing documents, the “pdf” versions of the documents are word searchable.

Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

Rollover crashes are complex events that reflect the interaction of driver, road, vehicle, and environmental factors. We can describe the relationship between these factors and the risk of rollover using information from the agency's crash data programs. We limit our discussion here to light vehicles, which consist of (1) passenger cars and (2) multipurpose passenger vehicles and trucks under 4,536 kilograms (10,000 pounds) gross vehicle weight rating. 1

According to the 1999 Fatality Analysis Reporting System (FARS), 10,140 people were killed as occupants in light vehicle rollover crashes, including 8,345 killed in single-vehicle rollover crashes. Eighty percent of the people who died in single-vehicle rollover crashes were not using a seat belt, and 64 percent were partially or completely ejected from the vehicle (including 53 percent who were completely ejected). FARS shows that 55 percent of light vehicle occupant fatalities in single-vehicle crashes involved a rollover event. The proportion differs greatly by vehicle type: 46 percent of passenger car occupant fatalities in single-vehicle crashes involved a rollover event, compared to 63 percent for pickup trucks, 60 percent for vans, and 78 percent for sport utility vehicles (SUVs).

Using data from the 1995-1999 National Automotive Sampling System (NASS) Crashworthiness Data System (CDC), we estimate that 253,000 light vehicles were towed from a police-reported rollover crash each year (on average), and that 27,000 occupants of these vehicles were seriously injured (defined as an Abbreviated Injury Scale (AIS) rating of at least AIS 3). 2 Of these 253,000 light vehicle rollover crashes, 205,000 were the result of a single vehicle crash. (The present rollover resistance ratings estimate the risk of rollover if a vehicle is involved in a single vehicle crash.) Sixty-five percent of those people who suffered a serious injury in single-vehicle tow-away rollover crashes were not using a safety belt, and 50 percent were partially or completely ejected (including 41 percent who were completely ejected). Estimates from NASS-CDC indicate that 81 percent of tow-away rollovers occurred in single-vehicle crashes, and that 87 percent (178,000) of the single-vehicle rollover crashes occurred after the vehicle left the roadway. An audit of 1992-96 NASS-CDC data showed that about 95 percent of rollovers in single vehicle crashes were tripped by mechanisms such as curbs, soft soil, pot holes, guard rails, and wheel rims digging into the pavement, rather than by tire/road interface friction as in the case of untripped rollover events.

According to the 1995-1999 NASS-General Estimates System (GES) data, 57,000 occupants annually received injuries rated as K or A on the police KABCO injury scale in rollover crashes. (The police KABCO scale calls “A” injuries “incapacitating,” but their actual severity depends on local reporting practice. An “incapacitating” injury may mean that the injury was visible to the reporting officer or that the officer called for medical assistance. A “K” injury is fatal.) The data indicate that 205,000 single-vehicle rollover crashes resulted in 46,000 K or A injuries. Fifty-four percent of those with K or A injury in single-vehicle rollover crashes were not using a seat belt, and 20 percent were partially or completely ejected from the vehicle (including 18 percent who were completely ejected). Estimates from NASS-GES indicate that 16 percent of light vehicles in police-reported single-vehicle crashes rolled over. The estimated risk of rollover differs by light vehicle type: 13 percent of cars and 14 percent of vans in police-reported single-vehicle crashes rolled over, compared to 24 percent of pickup trucks and 32 percent of SUVs. The percent of all police reported crashes for each vehicle type that resulted in rollover was 1.6 percent for cars, 2.0 percent for vans, 3.7 percent for pickup trucks and 5.1 percent for SUVs as estimated by NASS-GES.

In a June 1, 2000 notice (65 FR 34998), NHTSA announced its intention to include consumer information ratings for rollover resistance of passenger cars and light trucks in its New Car Assessment Program (NCAP). NCAP has provided comparative consumer information on vehicle performance in frontal and side impact crashes for many years. About 22 percent of passenger car occupants killed in crashes are killed in rollover crashes, as compared with more than 70 percent killed in frontal and side crashes combined. In the case of light trucks, however, about as many occupants are killed in rollover crashes as in frontal and side crashes combined. NHTSA proposed a rating system based on the Static Stability Factor (SSF) which is the ratio of one half the track width to the center of gravity height.

SSF was chosen over vehicle maneuver tests because it represents the first order factors that determine vehicle rollover resistance in the 95 percent of rollovers that are tripped. Driving maneuver tests represent on-road untripped rollover crashes which are about 5 percent of the total. Other reasons for selecting the SSF measure are: driving maneuver test results are greatly influenced by SSF; the SSF is highly correlated with actual crash statistics; it can be measured accurately and explained to consumers; and changes in vehicle design to improve SSF are unlikely to degrade other safety attributes.

The industry comments to the June 2000 notice were that SSF was too simple because it did not include the effects of suspension deflections, tire traction and electronic stability control (ESC) and that the influence of vehicle factors on rollover risk was so slight that vehicles should not be rated for rollover resistance. In the conference report dated October 23, 2000 of the FY2001 DOT Appropriation Act, Congress permitted NHTSA to move forward with the rollover rating proposal and directed the agency to fund a National Academy of Sciences' study on vehicle rollover ratings. The study topics are “whether the static stability factor is a scientifically valid measurement that presents practical, useful information to the public including a comparison of the static stability factor test versus a test with rollover metrics based on dynamic driving conditions that may induce rollover events.”

The Consumers Union (CU) commented to the June 2000 notice that although SSF is a useful predictor of tripped rollover, it should be used in conjunction with a dynamic stability test using vehicle maneuvers to better predict the risk of untripped rollovers. CU also believes that NHTSA underestimated the incidence of on-road untripped rollover by relying upon 1992-1996 data.

Section 12 of the “Transportation Recall, Enhancement, Accountability and Documentation (TREAD) Act of November 2000” reflects CU's concern. It directs the Secretary to “develop a dynamic test on rollovers by motor vehicles for a consumer information program; and carry out a program conducting such tests. As the Secretary develops a [rollover] test, the Secretary shall conduct a rulemaking to determine how best to disseminate test results to the public.” The rulemaking and test program must be carried out by November 1, 2002. This notice is part of NHTSA's work to satisfy the requirements of Section 12 of the TREAD Act.

NHTSA responded to these and other technical comments to the June 2000 notice in a January 12, 2001 notice (66 FR 3388) and announced the agency's decision to use the SSF as a measure, along with publishing the initial rollover resistance ratings. As of April 2001, the agency has added the rollover resistance ratings of 104 vehicles to the frontal and side crash ratings given by NCAP (see www.nhtsa.dot.gov/hot/rollover/ for ratings, vehicle details and explanatory information).

NHTSA awarded a grant to the National Academy of Sciences for its study of vehicle rollover ratings on December 15, 2000 and its first public meeting on the subject took place on April 11 and 12, 2001. A second open meeting will allow for consideration of alternatives to SSF for rating vehicles, and presentations on consumer information and risk communication. At a closed meeting the NAS committee will finalize its draft report. The study will conclude with the required report to Congress.

In response to the TREAD Act, NHTSA met with the Alliance of Automobile Manufacturers, Nissan, Toyota, Ford, Consumers Union (CU), Automotive Testing, Inc. (an independent test lab), MTS Systems Corp., the University of Michigan Transportation Research Institute (UMTRI), Daimler-Chrysler, BMW, Volkswagen and Volvo to gather information on possible approaches for dynamic rollover tests. These parties made specific suggestions about approaches to dynamic testing of vehicle rollover resistance. In addition, recent NHTSA research summarized in the report entitled “An Experimental Examination of Selected Maneuvers That May Induce On-Road Untripped, Light Vehicle Rollover—Phase II of NHTSA's 1997-1998 Vehicle Rollover Research Program”  3 is relevant to the development of a dynamic rollover test suitable for inclusion in our consumer information program.

This notice identifies a variety of dynamic rollover tests that we have chosen to evaluate in our research program and what we believe to be their potential advantages and disadvantages. It also discusses other possible approaches we considered but decided not to pursue. Table 1 summarizes the advantages and disadvantages we anticipate for the various approaches prior to research which will increase our understanding. We invite public comment on our decisions, on our observations and on the general subject of rollover resistance testing for consumer information.

Track testing using the maneuvers discussed in this notice began in April 2001 at NHTSA's Vehicle Research and Test Center in East Liberty, Ohio. We intend to publish a second notice in early 2002 presenting a tentative dynamic rollover test procedure chosen on the basis of this research and the comments to today's notice. We will review the comments to today's notice expeditiously and may revise the test development research based on the comments. A final notice responding to the comments to the second notice, presenting the final dynamic rollover test procedure, and containing an initial set of rollover resistance ratings will be published in October 2002.

The test vehicles chosen for the evaluation of potential maneuver tests are the 2001 Ford Escape (without electronic stability control (ESC  4 )), the 2001 Chevrolet Blazer (without ESC), the 2001 Toyota 4Runner (with and without ESC enabled) and the 1999 Mercedes ML-320 (with and without ESC enabled). They represent the significant range of static stability factors that characterize today's SUVs. They also include two ESC systems with possible differences in operation. The vehicles will be tested in a base load configuration with driver, instruments and outriggers, in a second configuration with a roof load to reduce SSF by .05, and in other load configurations intended to influence handling. The loads will be positioned so as to change one coordinate of the c.g. location without influencing the other two. For example, in the second load configuration, about 200 pounds will be secured to the roof in a position that maintains the fore-aft and side-to-side location of the c.g. but raises it enough to cause a reduction of 0.05 in the SSF (while also increasing the vehicle's mass moments of inertia).

The test vehicles will be equipped with special wheel force sensors at each wheel during some of the evaluation of potential maneuver tests. They will provide better information for our evaluation of how these vehicles react to different characteristics of the candidate test maneuvers. Wheel force measurements will determine absolutely when two wheel lift occurs. Also, they will allow us to measure the degree of load transfer during runs that do not cause wheel lift, a capability not possible in our previous research. The sensors also can reveal possible interactions between vertical and lateral wheel forces that maneuvers may produce in some vehicles.

We considered some methods of dynamic testing for rollover resistance that did not use driving maneuvers, but decided to concentrate our research on driving maneuver tests for the reasons discussed in Section VII. However, driving maneuver tests share some significant difficulties in comparison to laboratory tests. Since they directly represent a deadly type of crash, the safety of test drivers will always be a concern, even though drivers will be belted and outriggers will be used in most circumstances. Outriggers are the usual means of minimizing the chance of an actual rollover crash during a test, but they also introduce problems. If an outrigger digs into the pavement, it can cause the vehicle to “pole vault” resulting in an even worse rollover crash. The weight of the outrigger(s) may change the vehicle's c.g. location and will increase its mass moments of inertia, placing restraints on the natural desire to overdesign the outriggers for safety. The mounting of the outrigger can also influence vehicle handling by changing its structural stiffness. We will choose outriggers designed to the best contemporary practices and evaluate their effect on maneuver test results.

Maneuver tests are expensive. Besides the labor involved in performing the maneuvers and interpreting the results, the test methods require that each test vehicle be custom fitted with costly precision instruments, onboard computers, probably an array of special steering and braking controls, and possibly telemetry. The wheel force transducers included in these developmental tests are not expected to be necessary for routine tests in a consumer information program, but there may be a need for less intrusive means of load transfer monitoring. Frequent tire changes, adding to cost and labor, are necessary in maneuver tests because tire shoulder wear can significantly influence force generation. Part of this research will define the need for tire changes in the selected maneuver in routine consumer information testing. Finally, damage to the vehicles as a result of the tests or the installation of equipment is a cost factor.

The use of driving maneuver tests to rate rollover resistance presents some questions beyond test methodology, danger and expense. A high statistical correlation based on a large sample of police reports of rollover crashes was possible for the present ratings based on SSF because SSF is a good predictor of tripped rollovers, in particular, and the preponderance of rollovers in state crash reports are tripped. As part of NHTSA' s dynamic maneuver test program in 1997 and 1998, we tried to correlate the performance of the test vehicles on various maneuvers to their rates of on-road untripped rollover crashes. We found that it is not possible to obtain sufficient data, even on high volume vehicles, to determine a correlation between maneuver test outcome and untripped rollover involvement. The only data base we are aware of that contains data identifying untripped rollover crashes is NHTSA's NASS-CDS. However, only about 4300 crashes of all types (frontal, side, rear and rollover) are researched in depth each year for inclusion in this data base and only about ten of those cases are untripped rollovers. 5 The NASS-CDS data base is usually used with weighting factors for different types of crashes to represent national trends. However, the number of observations is too small to support make/model correlations between maneuver test results and real-world untripped rollover rates.

Some of the 17 states in NHTSA's State Data System (SDS) data base  6 attempt to distinguish between on-road and off-road rollover crashes. While it seems inviting to use on-road rollover as a surrogate for untripped rollover, this is not strictly accurate. Most on-road rollovers occur when the vehicle is tripped by road surface irregularities or the wheel rim digging into the pavement. 7 Also, police may code a rollover crash as “on-road” because the vehicle was found at rest on the roadway. The designation “on-road” does not necessarily mean that the roll initiation occurred on the roadway.

The correlation, by make/model, of performance in a maneuver test to the rate of all rollovers would be highly dependent on the degree to which good performance in the driving maneuver test is the result of low c.g. height, large track width and other factors which also increase resistance to tripped rollovers. Optimization of tire properties and ESC operation for a particular maneuver test would likely decrease this level of correlation over time if effective ways of improving test performance are developed that do not improve the tripped rollover resistance of vehicles. Therefore, it is unlikely that the choice of any particular maneuver test or tests can be justified on the basis of the correlation of the test results to real-world rollover rates. This situation makes the resemblance of the chosen maneuver test or tests to documented crash scenarios even more important.

Ratings based on driving maneuvers may be complex and hard to communicate to the public because the usual rollover criterion of two wheel lift can be at odds with the handling capability of the vehicle. In a path following maneuver, the test is terminated when the vehicle can no longer follow the path. For example, consider a vehicle that cannot negotiate the path beyond 38 mph, but it departs the path before it achieves two wheel lift. Consider a second vehicle that can follow the path at 45 mph but lifts the inside tires three inches off the pavement. Which vehicle should be rated higher? Departing the roadway, as the first vehicle would seem likely to do more often than the second vehicle, can expose a vehicle to a high risk of tripped rollover.

ESC was originally designed to keep the vehicle headed in the direction desired by the driver rather than to plow-out (understeer) or to spin-out (oversteer) in a limit cornering situation by using one or more brakes to help turn the vehicle to the correct heading. ESC cannot increase the maximum traction, and consequently prevent a vehicle from leaving the road, if the vehicle is going too fast. ESC may help drivers regain control rather than overreact in situations like an abrupt “road-edge recovery” where there is sufficient traction to recover. In this way, ESC has the potential to reduce the number of single vehicle crashes that turn into tripped rollovers. However, ESC can be programmed to work in many other ways. In one way, it can apply the brakes automatically to slow the vehicle at a selected value of lateral acceleration or at a similar criterion. While this is a plausible safety strategy, it has the potential to overwhelm the other aspects of vehicle behavior measured in a maneuver test. In most maneuver tests, the vehicle is steered through the maneuver while coasting because any attempt to keep a steady throttle position tends to make the tests less repeatable. Even in a short maneuver, the vehicle scrubs off some speed. For example, a vehicle entering a short maneuver coasting at 50 mph is likely to exit at 45 mph or less. However, with braking intervention programed into the ESC, a vehicle could easily slow to 25 mph during the test. While both vehicles would be rated on their entry speed, the ESC vehicle may be going much slower at the critical part of the maneuver. It is possible that maneuver tests could simply result in segregating vehicles with automatic brake intervention from those without it. Automatic brake intervention may produce some safety benefits. NHTSA believes, however, that the vast majority of drivers also apply the brakes in difficult situations, regardless of whether the vehicle has automatic brake intervention. Thus, a maneuver test conducted while coasting could reward this type of ESC design excessively. NHTSA expects that most drivers would brake during similar maneuvers, and that automatic brake intervention would make less difference in real driving than during tests in which drivers are not permitted to brake.

Important environmental conditions also will influence the results of any driving maneuver test for rollover ratings. The pavement friction of even a dedicated test area does not remain constant. There is a cycle of polishing and weathering during periods of use and disuse, and a possible temperature effect on pavement friction. The usual method of determining pavement friction is a locked wheel braking test conducted at a constant 40 mph using a “skid trailer” with a water nozzle to wet the surface immediately ahead of the skidding tire. The pavement friction coefficient generated by this test is called the “skid number”. General Motors has reported that moderate differences in skid number, even when measured without pavement wetting, do not correspond well to differences in lateral force generated by vehicles on different pavements. Our planned test program includes hot weather and cold weather testing as well as tests conducted on different surfaces at three to date undetermined test facilities. The result we hope for is a definition of a minimum friction level for a valid test as tracked by tests using a control vehicle.

Not every vehicle is tested each year in the new car assessment program. The results for vehicles without substantial changes tested in previous years are carried over to represent vehicles of the current model year. The test results, and the resulting rollover ratings, from the previous year might not be comparable to the new year's results if there were significant differences in pavement friction.

The driving maneuver tests for rollover resistance that have received the most publicity over the years are the “emergency double lane change” of Consumer Reports magazine and the European “moose test.” The first test was the basis of criticism by Consumer Reports that the 1988 Suzuki Samurai and the 1996 Isuzu Trooper were “not acceptable.” The “moose test” was used by a European auto magazine to demonstrate that the 1998 Mercedes-Benz A Class minicar could experience on-road untripped rollover in a similar maneuver. We classify both tests as path following tests to distinguish them from another type of maneuver tests in which explicit steering inputs are required without reference to the path they cause the vehicle to take. We will evaluate both the CU double lane change (CU is the publisher of Consumer Reports) and a version of the moose test recommended by Daimler-Chrysler. We will also evaluate the use of mathematical path correction and an automated steering controller  8 to improve these driving maneuver tests.

The CU double lane change short course (figure 1) was developed in order to replicate an unintentional rollover experienced by a Consumer Reports staff member driving a Suzuki Samurai. It consists of a 70-foot-long, 8-foot-wide entrance lane that is centered in a 12-foot-wide first (right) lane, a 50-foot-long area to make the first lane change (to the left), a set of gate cones at this 50-foot mark that are 12 feet apart (with the right cone three feet into the left lane), a 60-foot-long area to make the second lane change back to the right lane, and a 12-foot-wide exit lane. The test driver steers the vehicle through the course at successively higher entry speeds until the vehicle either plows out, spins out, or tips up. The vehicle is coasting through the maneuver. The driver does not apply the brakes, and driver releases the throttle 35 feet into the 70 foot entrance lane.

An advantage of the CU double lane change is its face validity, that is, drivers can imagine a situation in which they may try to make a similar maneuver. However, NHTSA believes that there are good arguments that simply braking without steering or braking and steering with an ABS equipped vehicle are better strategies to avoid the hypothetical object in the road that is the basis of the CU test. In addition, it is hard to find actual crashes that resemble the test. Nevertheless, driving through a tight double lane change without wheel lift is probably a good representation of what the public expects of a personal vehicle.

An important part of the double lane change is the immediate steering reversal necessary to get back in the right lane after steering sharply into the left lane to avoid the hypothetical object in the roadway. This steering reversal allows the energy stored in the suspension springs during the left steer and the roll momentum of the sprung mass when that energy is released at the steering reversal to add to the load transfer caused by the sharp right steer. The dynamics of the steering reversal are not included in SSF, Tilt Table Ratio, or even the J-turn maneuver (see 65 FR 34998 for details about these rollover resistance metrics). So this aspect of the double lane change better represents the dynamics that may result in an untripped rollover.

However, if the only criterion for success in a double lane change maneuver is whether or not two-wheel lift can be made to occur, any vehicle will pass such a test if equipped with tires of sufficiently low traction or with chassis tuning that produces the same effect. In this case, the vehicle will simply run off the desired path at a speed and lateral acceleration too low to produce two-wheel lift. On the other hand, an inherent advantage of path-following maneuvers like the double lane change is that the maximum speed through the maneuver can be used as part of the vehicle score to reward good handling and avoid creating a rollover resistance rating with incentives for reduced handling and braking performance. Like all the driving maneuvers we are considering, the CU double lane change also has the advantage of displaying the operation of electronic stability control systems.

The foremost disadvantage of the CU double lane change is that differences in driving style can strongly influence the test results. The time history of the steering wheel angle may vary considerably for runs of the same vehicle at the same speed (figure 2). Tests in which the driver starts the steering movements earlier seem to produce a moderately smaller initial left steer and a much smaller amount of right steer after passing through the offset gate. The steering reversal (from maximum left steer to maximum right steer) can vary significantly at the same test speed, and the runs with a greater steering reversal appear more likely to produce two-wheel lift. For example, during CU tests of the Isuzu Trooper, one driver ran the course at 37.5 mph with a left steer of 183 degrees followed by a right steer of 216 degrees (399 degree steering reversal) and did not knock down the course boundary cones or experience two-wheel lift. Another driver ran the same course at 37.5 mph using an initial left steer of 191 degrees followed by a right steer of 388 degrees (579 degree steering reversal) and experienced two-wheel lift.

Another potential disadvantage of the double lane change maneuver is the possibility that the course layout may cause the steering reversal and roll momentum effect to be more critical for some vehicles than for others. The course originally used by Consumer Reports had the offset gate forcing the lane change positioned 60 feet from the end of the entrance lane and also 60 feet from beginning of the exit lane. When the publication tried to replicate its staff member's rollover crash of a Suzuki Samurai, it found that shortening the distance from the end of the entrance lane to the offset gate by 10 feet and moving the offset gate three feet further to the left made two wheel lift of the Samurai more likely. This suggests that tuning of the course to the vehicle may be necessary to create a worst case condition and that a course tuned to one vehicle may not be the worst case for another vehicle to which it is compared.

The VDA Double Lane Change is a variant of the “moose test” used by a Scandinavian automotive magazine. It was developed by the German Alliance of Automotive Industry (VDA) to minimize the influence of driving style on the original moose test for use as an industry standard rollover and handling test procedure. As a double lane change maneuver, it is identical in concept to the CU test, and it is useful to contrast the two maneuvers.

The method VDA used to minimize driver influence was to reduce the lane and gate widths and tie these parameters to the width of the test vehicle. Using the VDA course (figure 3) for a 70 inch wide vehicle (typical of the most popular SUVs and mid-sized cars) the widths of the entrance lane, offset gate, and exit lane are 7.25 feet, 9.12 feet and 9.9 feet, respectively, compared with 8 feet, 12 feet and 12 feet for the same components of the CU double lane change course. The distance from the end of the entrance lane to the beginning of the offset gate is 44.3 feet rather than 50 feet for the CU test, and the distance from the end of the offset gate to the beginning of the exit lane is only 41 feet, compared to 60 feet for the CU test. There is also a difference in the amount of offset of the left lane gate. In the CU test, the inside of the gate is offset 5 feet to the left of the inside of the entrance lane and 3 feet to the left of the exit lane (because the exit lane is 4 feet wider than the entrance lane). In the VDA test, the left edges of the entrance and exit lanes are in line, and right edge of the offset gate is 3.3 feet to the left.

The fundamental difference between the CU and VDA courses is that while the vehicle has to pass through a gate comprised of two cones marking a 12 foot left lane width in the CU test, it has to traverse a 36-foot-long by 9.12-foot-wide left lane in the VDA test before turning right to re-enter the right lane. The VDA test is more like a single lane change to the left immediately followed by a second single lane change to the right and does not have as sharp a steering reversal as the CU double lane change test. In both tests, the vehicle begins to coast about 35 feet before the end of the entrance lane.

The VDA double lane change shares with the CU test the advantage of face validity, but the VDA test would appear to be less subject to variability in driving style. It also uses a rating criteria that implicitly rewards good handling. It is scored by the maximum entry speed of the vehicle's clean runs along with a notation of the limiting event: understeer, oversteer or two-wheel lift. Like all the other maneuver tests we are considering, it has the advantage of displaying the operation of ESC systems, but the entry speed criteria may disproportionately favor ESC systems with simple brake intervention.

Efforts to reduce driver variability may also introduce problems. The least serious problem is that narrow lanes may make the course so hard to follow that imprecise driving rather than actual oversteer or understeer may cause collisions with the course marking cones. Daimler-Chrysler reports that expert drivers can negotiate the course at about 4 mph faster than average drivers. It is unclear whether this is due to expert steering strategy optimizing the vehicle path for lower peak lateral acceleration even within the reduced boundaries or simply to better ability to judge cone position and control vehicle position. If this problem exists, simply allowing the driver more tries at a given speed may be all that is necessary to determine whether vehicle handling is really the limiting factor.

The more serious potential problem is the use of a 36 foot long left lane, rather than just a gate to drive around. It potentially removes the roll momentum effect associated with the sharp steering reversals. While this effect increases the variability of CU test results due to differences in driving style, it also reveals rollover propensities that would not likely show up in a test like the J-turn.

Assuming that the VDA double lane change does not suppress the potential effects of unfavorable roll momentum, it also shares the question of steering reversal timing with the CU test. Namely, does the course layout present a worst case timing in which roll momentum reinforces the side to side load transfer at peak lateral acceleration for some vehicles but not for others?

In its 1997-1998 rollover research, NHTSA made use of an automated steering controller to achieve highly repeatable J-turn and fish hook maneuvers. As discussed above, the potential problems of double lane change tests are the lack of repeatability caused by variations in driving style and the possibility that a course producing worst case roll momentum for one vehicle may not do so for the next vehicle. We will attempt to solve these problems by using the steering controller in a non-path following maneuver approximating a double lane change.

The idea is to use steering rates and magnitudes typical of driver-controlled CU tests, but to use the automated controller for repeatability. Separate circular path tests of each vehicle would be done to relate lateral acceleration to steering angle in the linear range. This information would be used to tailor the steering angles for the pseudo-double lane change to the steering ratio and wheelbase of each test vehicle. The steering controller would also tailor the course for the worst case roll momentum for each vehicle. Body roll rate feedback would be used to time the first steering reversal left to right and also the second steering reversal right to straight ahead.

This is not a maneuver established in literature or in practice. It is little more than a concept now. Its potential drawback is that the maneuver may stray too far from an actual double lane change to retain any face validity. Also, it is unclear if the advantage of a simple speed and limit circumstance score would remain applicable to a double lane change performed in this manner.

From a vehicle manufacturer's prospective, the double lane change maneuver is a good test to evaluate a vehicle's limit handling behavior, because it is a realistic maneuver and it allows engineers to simultaneously evaluate the three main behaviors that affect limit handling safety (responsiveness, lateral stability and rollover resistance). However, lane changes are driver-dependent (meaning vehicle performance is heavily influenced by how the driver drives the vehicle) and their rating scales are usually subjective (meaning based on driver expert evaluation rather than on measured data). To solve this problem, Ford Motor Company has developed Path-Corrected Limit Lane Change (PCLLC). It is claimed to be a driver-independent, objective way to run limit handling lane changes. First, vehicles are run through a series of maneuvers much like the CU double lane change except that a range of course lengths and degrees of lane offsets are used to measure their responses to steering inputs in a range of frequencies. The data is then normalized mathematically to show how each of those vehicles would have performed had they followed precisely the same paths in the lane change. This is what “Path-Correction” means, and this normalization reduces the driver influence in the maneuver.

PCLLC is a proprietary technique, and the details have not been reported publicly by Ford. Ford is allowing NHTSA to evaluate this technique under a confidentiality agreement. NHTSA will run Ford's specified suite of vehicle characterization tests using its own vehicles and test track with Ford's assistance in instrumenting the vehicles for the measurements required for the mathematical path corrections. Ford will explain the theory of the mathematical corrections to NHTSA, and perform the corrections on NHTSA's vehicle test data in a confidential report. If NHTSA decides to propose this technique as the best way of accomplishing the dynamic rollover tests required by the TREAD Act, it expects that Ford will release it from the confidentiality agreement so that the test procedure can be proposed in detail in our next notice early in 2002.

We view PCLLC as a mathematical technique which allows the construction of “perfect test runs” for an objective comparison of vehicles from a suite of similar test runs which expose each vehicle to a range of speeds, steering frequencies, rates and amplitudes. It looks like a good approach to overcoming the disadvantages discussed earlier for the more conventional driver controlled lane change maneuver tests. Driving style variability would clearly be eliminated, and it appears that this technique can construct a number of standard paths to examine the question of how many courses are necessary for a fair evaluation of the roll momentum effect for vehicles with different properties.

NHTSA has envisioned that PCLLC could be used as a way of producing the equivalent of a CU double lane change test with every vehicle following exactly the same geometric path up to the point that it either has two-wheel lift or can no longer maintain the prescribed path as a result of limit understeer or oversteer. Under this idea, the rating criteria could be speed and the limiting circumstance (plow, spin or two wheel lift) as with the Daimler-Chrysler recommendation, with the possibility of greater rating complexity if more than one test course were required.

However, it is not clear whether the PCLLC technique can be used this way and whether this would be the best way to use it. Ford is looking at many different vehicle handling metrics and cited three examples. Responsiveness could be represented by a delay time from steering input to yaw response evaluated on a path corrected to the same time history of yaw angle for each vehicle. Lateral stability could be characterized by rear tire slip angle on a path corrected to equal lateral acceleration for each vehicle. Untripped rollover resistance could be characterized by the degree of side to side load transfer evaluated on a path representing the maximum lateral acceleration capacity of the vehicle (considering such factors as practical limits on steering angle and rate and limit oversteer). Since the vehicle characterization runs are performed with ESC operating, the results should reflect its influence in the same way as other driving maneuver tests.

The fishhook maneuver was originally developed by Toyota Motor Corporation as a maneuver with a strong roll momentum effect and a simple steering regime that would be fairly repeatable by test drivers. The maneuver requires the driver to steer as quickly as possible 270 degrees of steering wheel angle, and then to steer 870 degrees in the opposite direction as quickly as possible (figure 4). At less than limit speed runs, the vehicle's path resembles a fishhook shape (figure 5), but the actual path is immaterial to the scoring. The maneuver is repeated in each direction of initial steering and at increasing speed until two-wheel lift or loss of control occurs, or until preset maximum speed for test driver safety is reached. Toyota also added pulse braking  9 to make the maneuver more likely to induce two-wheel lift if the vehicle under test would not lift wheels without braking. The lateral acceleration at two-wheel lift (LAR) is Toyota's figure of merit for this maneuver.

NHTSA's 1997-98 research program made use of two variations on the Toyota “fishhook” maneuver theme. Since these tests are described by the steering input without regard for different paths taken by different vehicles, they are considered “open-loop”. They were also perfect candidates for NHTSA's goal of using an automated steering controller for precise repeatability for maximum objectivity. NHTSA's tests did not use pulse braking because we were concerned that pulse braking tests were not merely a more stringent level of the basic fishhook, but a test of different vehicle dynamics. In one version, the steering rate was set at 750 degrees per second for all vehicles and the dwell time  10 between steering reversals was “tuned” for each vehicle to resemble half a sine wave at what we thought was the roll natural frequency of each vehicle. In the other variation, we attempted to represent a road edge recovery maneuver by setting the initial steer angle to 7.5 degrees of the road wheels (to represent the front tire slip angle possible when a vehicle mounts a four inch pavement height above the road shoulder), using a constant 0.5 second dwell time and a more moderate steering rate of 500 steering wheel degrees per second. The first maneuver was generally more severe than the second. It was configured to represent a steering frequency of 0.5 Hz, which was the roll natural frequency assumed for most vehicles because our attempts at measuring roll natural frequency were thwarted by vehicle suspension damping. However, some of the vehicles responded with greater load transfer to the seemingly gentler “road-edge recovery” fishhook which used a different steering frequency. This suggests the possible importance of roll momentum timing.

Open loop fishhook maneuver tests are like the mirror image of the double lane change tests because their principle advantages and disadvantages are reversed. Aided by a steering controller, driving style differences are absolutely eliminated. These maneuvers also present the best possibility for tuning the maneuver to the roll characteristics of each test vehicle, thereby eliminating the suspicion that the steering frequency of a fixed double lane change makes the test inherently more stringent for some vehicles than others. However, the fishhook maneuver has much less face validity than the double lane change maneuver. Even the “road edge recovery” version of the fishhook does not look, to a ordinary driver, like a maneuver he or she would ever be called upon to make.

There is another disadvantage to open loop tests. Because the vehicle path does not matter, two-wheel lift can be prevented simply by using tires of sufficiently low traction or chassis tuning that produces the same effect. Unless an open loop test is accompanied by other tests of specific handling properties, it could have the perverse effect of encouraging manufacturers to sacrifice handling and braking to make superficial refinements to improve a rollover rating. Also, improvements in a rollover rating gained by special original equipment tire properties may be negated when the tires are replaced later in the life of the vehicle.

NHTSA will evaluate three types of fishhook maneuvers. In one maneuver the counter steer will be limited to about 500 to 600 degrees, rather than 870, because the large countersteer is thought to scrub off so much speed that it reduces the severity of the maneuver. Also, instead of a fixed 270 degree initial steer, a steering wheel angle derived from the steering angle causing a fixed lateral acceleration, in the linear range, will be chosen to put vehicles with differences in steering gear ratio and wheelbase on an equal footing. A fixed steering rate of 720 degrees per second and a fixed time from the beginning of steering to its return to zero angle during countersteer will be used.

In the second fishhook, the timing of the steering reversal will be based on roll rate feedback. The worse case roll momentum effect is expected when the start of the steering reversal coincides with the instant of maximum roll angle resulting from the first steer. We expect to use an approximate zero reading of a roll rate sensor to indicate maximum roll angle and trigger the countersteer by the automatic steering controller.

The third variation will use a counter steer timing technique suggested by Nissan (figure 6). In this method, the first part of the fishhook is studied separately prior to the fishhook test maneuvers in order to define the worst case dwell time. This is done by running a step steer maneuver (the same as a J turn) at the same steering rate and maximum angle as the first steering movement of the fishhook. The roll rate is measured to determine the time of the maximum roll angle of the second oscillation. Nissan believes that the most severe fishhook for each vehicle is the one in which the lateral acceleration zero crossing during countersteering in the fishhook occurs at the second oscillation peak time as measured in the J turn maneuver. The dwell time from initial steer to countersteer would be adjusted accordingly. The theoretical basis for Nissan's observation on fishhook severity is not obvious. Nissan's belief is based on experimental studies during which dwell time was varied. Its technique appears to produce a countersteer timing similar to that produced by roll rate feedback.

As mentioned above, fishhook tests contain no inherent disincentives for rollover resistance strategies that sacrifice handling. NHTSA is considering adding some objective measure of handling ability to any fishhook test used for consumer information. We are considering a steering response time test possibly based on a J-turn (step steer) and a maximum lateral acceleration test based on either a constant steer input with slowly increasing speed regime or a constant speed with slowly increasing steer regime. We are concerned, however, that even this limited NHTSA definition of handling may produce undesirable trade-offs of less measurable aspects of vehicle handling when manufacturers design to the test. We are particularly interested in comments on how likely it is that vehicle manufacturers would make such trade-offs to “beat” the test.

NHTSA also considered two dynamic tests that did not involve driving maneuvers, namely the centrifuge test and driving maneuver simulation using computational models. Both of these tests have the major benefit of being independent of pavement friction, whereas the problem of pavement friction variation is perhaps the most vexing issue common to all the driving maneuver tests discussed above. However, we decided not to include these tests in our research plan under TREAD for the reasons explained below.

The test device for the centrifuge test is similar in concept to a merry-go-round. A person seated at the edge of the merry-go-round feels a lateral force pushing him or her away from the spinning surface that increases with the rotational speed of the merry-go-round. The centrifuge device test (figure 7) consists of an arm attached to a powered vertical shaft. At the end of the arm is a horizontal platform upon which the test vehicle is parked. As the vertical shaft rotates, the parked vehicle is subjected to a lateral acceleration that can be precisely controlled and measured. The basic measurement is the lateral acceleration at which the parked vehicle experiences two-wheel lift. The outside tires are restrained by a low curb so the measurement is independent of surface friction, and the vehicle is tethered to prevent excessive wheel lift. This test method was suggested by the University of Michigan Transportation Research Institute (UMTRI) both in comments to our notice about the present rollover resistance ratings and more recently in the context of the TREAD Act. The test method is directed primarily at tripped rollover, which UMTRI noted accounts for all but a small percentage of rollovers.

The centrifuge test has many advantages. It can produce measurements which are accurate, repeatable and economical in labor costs. It includes the effects of tire and suspension deflections, and its measurements would be expected to correlate well with the actual rollover rates of vehicles, because those statistics are largely driven by tripped rollovers. The centrifuge test is arguably more accurate than SSF in evaluating tripped rollover resistance because it evaluates the outward c.g. movement as a result of suspension and tire deflections. Its basic measurement of a vehicle, lateral acceleration at two-wheel lift, is roughly 15 percent less than the vehicle's SSF with about a +/−5 percent range to cover extremes in roll stiffness.

Despite these advantages, we did not choose to investigate the centrifuge test under the TREAD Act. Improvements in centrifuge test performance can be made by suspension changes that degrade handling. The best performance in the centrifuge test (and in the closely related but less accurate tilt table test) occurs when the front and rear inside tires lift from the platform at the same time. The tuning of the relative front/rear suspension roll stiffness to accomplish this will cause the vehicle to oversteer more than most manufacturers would otherwise desire. We do not want to tempt manufacturers to make this kind of trade-off. Further, we understood the intention behind TREAD to be that NHTSA should give the American public information on performance in a driving maneuver that would evaluate the performance of new technologies like ESC. The centrifuge test would not do so.

Computational models that simulate test maneuvers are used by vehicle manufacturers to assess handling and rollover performance of vehicle designs prior to building prototypes, and to evaluate the effect of suspension changes in prototypes and production vehicles. They present a potential solution to the safety, repeatability and pavement surface variability of real driving maneuver tests. Unfortunately, simulations now also carry enough disadvantages to disqualify their use for rollover resistance ratings. The various models used by different manufacturers produce different results, especially in simulating limit maneuvers. There is no agreement among manufacturers on a single model sufficient for this purpose. The time and cost of measuring the vehicle properties necessary for a limit maneuver model exceed that of running a real driving maneuver test. Validation testing of a model is necessary and greatly resembles the real tests the model hoped to avoid. Testing of the operation of ESC is problematic because the algorithms are often proprietary at the supplier level and not well known by the vehicle manufacturers. Given these difficulties, NHTSA has concluded that it is extremely unlikely they could be resolved in time for us to use computer modeling for the information we must provide to the American public beginning in November 2002.

NHTSA solicits general and specific comments on the subject of the development of a dynamic test for vehicle rollover resistance. We also wish to bring the following specific questions to the attention of commenters:

1. NHTSA has decided to devote its available time and resources under the TREAD Act to develop a dynamic test for rollover based on driving maneuver tests. Is this the best approach to satisfy the intent of Congress in the time allotted? Are there additional maneuvers that NHTSA should be evaluating? Which maneuver or combination of maneuvers do you believe is the best for rollover rating? Are these other approaches well enough developed and validated that they could be implemented 18 months from now?

2. How should NHTSA address the problem of long term and short term variations in pavement friction in conducting comparative driving maneuver tests of vehicle rollover resistance for a continuing program of consumer information?

3. Some ESC systems presently have two functions. One is yaw stability which uses one or more brakes to keep the vehicle headed in the right direction in a limit maneuver, and the other is simple brake intervention in excess of the braking required for yaw stability. It is expected that the presence of a brake intervention function in ESC will have a large effect on the rating of vehicles because the average speed through a given test maneuver for vehicles having this function will be much less than for vehicles without it (even if equipped with ESC for yaw stability) under the usual test protocols of coasting through maneuvers and using the entry speed as the test speed. Is the value given to the brake intervention function of ESC as opposed to the yaw stability function by potential rollover rating tests commensurate with its safety value to consumers? Please provide all the data and reasoning that support your view. Should NHTSA measure the vehicle speed at the completion of the maneuver as well as vehicle speed at entry?

4. If open-loop (defined steering input) maneuvers are used to determine whether a vehicle is susceptible to two wheel lift as a result of severe steering actions, superficial changes that reduce tire traction or otherwise reduce vehicle handling (but prevent wheel lift) would be rewarded the same as more fundamental or costly improvements. The same is true of closed loop (path following) maneuvers that use wheel lift as the sole criterion. Should measures of vehicle handling be reported so that consumers can be aware of possible trade-offs. What indicators of vehicles handling would be appropriate to measure and how should this consumer information be reported?

5. What criteria should NHTSA use to select the best vehicle maneuver test for rollover resistance? Should the maneuver that has the greatest chance of producing two wheel lift in susceptible vehicles be chosen regardless of its resemblance to driving situations? Is it more important that the maneuver resemble an emergency maneuver that consumers can visualize? How important is objectivity and repeatability?

This request for comment was not reviewed under Executive Order 12866 (Regulatory Planning and Review). Agency actions to develop tests for NHTSA's New Car Assessment Program are not rulemaking actions because the program does not impose requirements on any party.

In developing this document, we tried to address the concerns of all our stakeholders. Your comments will help us improve this notice. We invite you to provide different views on options we propose, new approaches we have not considered, new data, how this document may affect you, or other relevant information. We welcome your views on all aspects of this document, but request comments on specific issues throughout this document. Your comments will be most effective if you follow the suggestions below:

• Explain your views and reasoning as clearly as possible.

• Provide solid technical and cost data to support your views.

• If you estimate potential costs, explain how you arrived at the estimate.

• Tell us which parts of this document you support, as well as those with which you disagree.

• Provide specific examples to illustrate your concerns.

• Offer specific alternatives.

• Refer your comments to specific sections of this document.

• Be sure to include the name, date, and docket number with your comments.

Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES .

Comments may also be submitted to the docket electronically by logging onto the Dockets Management System website at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically.

If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT . In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR Part 512.)

We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date. However, late comments will not likely be able to influence our testing program. We encourage commenters to respond as soon as possible since the testing described in this notice is already underway. If Docket Management receives a comment too late for us to consider it in completing our test program developing a proposal on dynamic rollover performance, we will consider that comment as an informal suggestion for future enhancements to our rollover program.

You may read the comments received by Docket Management at the address given above under ADDRESSES . The hours of the Docket are indicated above in the same location.

You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

(1) Go to the Docket Management System (DMS) Web page of the Department of Transportation (http://dms.dot.gov/).

(2) On that page, click on “search.”

(3) On the next page ( http://dms.dot.gov/search/ ), type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-1998-1234,” you would type “1234.” After typing the docket number, click on “search.”

(4) On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. Although the comments are imaged documents, instead of word processing documents, the “pdf” versions of the documents are word searchable.

Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?

• Are the requirements in the rule clearly stated?

• Does the rule contain technical language or jargon that is not clear?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

• Would more (but shorter) sections be better?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rule easier to understand?

If you have any responses to these questions, please include them in your comments on this document.

Anticipated advantages: Familiar to the public, represents a real maneuver, considers roll momentum, use of speed as criteria implicitly rewards good handling, demonstrates action of ESC.

Anticipated disadvantages: Poor repeatability due to large driver influence, use of wheel lift as main criterion invites trade-offs in tire traction, may operate at a worst case suspension frequency for some vehicles but not others.

Anticipated advantages: Like CU but with less room for driver variability through tight cone placement, represents a real maneuver, use of speed as criteria implicitly rewards good handling, demonstrates action of ESC.

Anticipated disadvantages: Driver influence is reported to be still on the order of 4 mph, tight lane widths may test driver ability as much a vehicle handling, more like 2 back to back single lane changes—may not include roll momentum, may operate at a worst case suspension frequency for some vehicles but not others (course adjustments for wheelbase mentioned).

Anticipated advantages: Eliminates repeatability issues due to driver influences, attempts to represent a real maneuver, considers roll momentum, may use roll feedback to find worst case steering timing for each vehicle, use of speed as criteria implicitly rewards good handling? demonstrates action of ESC.

Anticipated disadvantages: Exists only as a concept—may prove to be entirely impractical, use of wheel lift as main criterion invites trade-offs in tire traction, failure to replicate a realistic path would devalue face validity and speed criterion, may be difficult to develop with available resources.

Anticipated advantages: Objective and repeatable, can it “perfect” the double lane change? considers roll momentum, demonstrates action of ESC.

Anticipated disadvantages: Suggested criteria requires handling definition and still may reward poor tire traction as it currently operates, rollover resistance is rated on different paths for different vehicles.

Anticipated advantages: Performed by automated steering controller for maximum objectivity and repeatability, considers roll momentum and seeks worst case for every vehicle, demonstrates action of ESC.

Anticipated disadvantages: Lacks face validity of lane change maneuvers, actual paths may differ widely between vehicles, needs separate handling criteria because poor tire traction is otherwise rewarded.

Advantages: A “perfection” of the well known tilt table, expandable to test performance at road perturbations, accounts for suspension and tire deflections (unlike SSF), can represent tripped rollover (like SSF), accurate, repeatable and relatively cheap measurements.

Disadvantages: Suspension optimization for centrifuge test score can degrade handling (unlike SSF), not be perceived as “dynamic enough” for TREAD requirements, does not demonstrate action of ESC.

Advantages: Objective and repeatable, solves pavement friction issues, any maneuver is possible.

Disadvantages: Cost of vehicle characterization even greater than for maneuver tests, ESC algorithms proprietary and possibly not known to vehicle mfgr., no universally accepted mathematic model.

The National Wildlife Refuge System Administration Act of 1966 (NWRSAA) closes national wildlife refuges to all uses until opened. The Secretary of the Interior (Secretary) may open refuge areas to any use, including hunting and/or fishing, upon a determination that such uses are compatible with the purposes of the refuge. The action also must be in accordance with provisions of all laws applicable to the areas, developed in coordination with the appropriate State wildlife agency(ies), must be consistent with the principles of sound fish and wildlife management and administration, and must be otherwise in the public interest. These requirements ensure that we maintain the biological integrity, diversity, and environmental health of the National Wildlife Refuge System (System) for the benefit of present and future generations of Americans.

We review refuge hunting and fishing programs annually to determine whether to include additional refuges or whether individual refuge regulations governing existing programs need modifications, deletions, or additions made to them. Changing environmental conditions, State and Federal regulations, and other factors affecting fish and wildlife populations and habitat may warrant modifications to refuge-specific regulations to ensure the continued compatibility of hunting and fishing programs and that these programs will not materially interfere with or detract from the fulfillment of the System's mission or the purposes of the refuge.

You may find provisions governing hunting and fishing on national wildlife refuges in Title 50 of the Code of Federal Regulations in part 32. We regulate hunting and fishing on refuges to:

• Ensure compatibility with the purpose(s) of the refuge;

• Properly manage the fish and wildlife resource;

• Protect other refuge values;

• Ensure refuge visitor safety; and

• Provide opportunities for high-quality recreational and educational experiences.

On many refuges where we decide to allow hunting and fishing, our general policy of adopting regulations identical to State hunting and fishing regulations is adequate in meeting these objectives. On other refuges, we must supplement State regulations with more restrictive Federal regulations to ensure that we meet our management responsibilities, as outlined under the section entitled “Statutory Authority.” We issue refuge-specific hunting and sport fishing regulations when we open wildlife refuges to either migratory game bird hunting, upland game hunting, big game hunting, or sport fishing. These regulations list the wildlife species that you may hunt or those species subject to sport fishing, seasons, bag limits, methods of hunting or fishing, descriptions of open areas, and other provisions as appropriate. You may find previously issued refuge-specific regulations for hunting and fishing in 50 CFR part 32. In this rulemaking, we are promulgating many of the amendments to these sections to standardize and clarify the existing language of these regulations.

Some refuges make seasonal information available in brochures or leaflets, which we provide for in 50 CFR 25.31, to supplement these refuge-specific regulations.

In this rule some of the revisions to the individual refuge units are to comply with a Presidential mandate to use plain language in regulations and do not modify the substance of the previous regulations. These types of changes include using “you” to refer to the reader and “we” to refer to the Service and using the word “allow” instead of “permit” when we do not require the use of a permit for an activity.

The National Wildlife Refuge System Administration Act (NWRSAA) of 1966 (16 U.S.C. 668dd-668ee, as amended), and the Refuge Recreation Act (RRA) of 1962 (16 U.S.C. 460k-460k-4) govern the administration and public use of national wildlife refuges.

Amendments enacted by the National Wildlife Refuge System Improvement Act (NWRSIA or Act) of 1997 amend and build upon the NWRSAA in a manner that provides an improved “Organic Act” for the System similar to those that exist for other public lands. The Act serves to ensure that we effectively manage the System as a national network of lands, waters, and interests for the protection and conservation of our Nation's wildlife resources. The NWRSAA states first and foremost that we focus the mission of the System on conservation of fish, wildlife, and plant resources and their habitats. This Act requires the Secretary, before initiating or allowing a new use of a refuge, or before expanding, renewing, or extending an existing use of a refuge, to determine that the use is compatible and promotes public safety. The NWRSIA establishes as the policy of the United States that wildlife-dependent recreation, when compatible, is a legitimate and appropriate public use of the System, through which the American public can develop an appreciation for fish and wildlife. The NWRSIA establishes six wildlife-dependent recreational uses, when compatible, as the priority general public uses of the System. Those priority uses are: hunting, fishing, wildlife observation and photography, and environmental education and interpretation.

The RRA authorizes the Secretary to administer areas within the System for public recreation as an appropriate incidental or secondary use only to the extent that doing so is practicable and not inconsistent with the primary purpose(s) for which Congress and the Service established the areas. This act requires that any recreational use of refuge lands be compatible with the primary purpose(s) for which we established the refuge and not inconsistent with other previously authorized operations.

The NWRSAA and RRA also authorize the Secretary to issue regulations to carry out the purposes of the acts and regulate uses.

We develop hunting and sport fishing plans for each refuge prior to opening it to hunting or fishing. In many cases, we develop refuge-specific regulations to ensure the compatibility of the programs with the purpose(s) for which we established the refuge. We have ensured initial compliance with the NWRSAA and the RRA for hunting and sport fishing on newly acquired refuges through an interim determination of compatibility made at or near the time of acquisition. This policy ensures that we make the determinations required by these acts prior to adding refuges to the lists of areas open to hunting and fishing in 50 CFR part 32. We ensure continued compliance by the development of Comprehensive Conservation Plans, long-term hunting and sport fishing plans, and by annual review of hunting and sport fishing programs and regulations.

In preparation for new openings, we include the following documents in the refuges' “opening package:” (1) Step-down hunting and/or fishing management plan; (2) Appropriate NEPA documentation (Categorical Exclusion, Environmental Assessment, or Environmental Impact Statement); (3) Appropriate decision documentation (e.g., Finding of No Significant Impact); (4) Section 7 evaluation; (5) Copies of letters requesting State and, where appropriate, Tribal involvement and the results of the request; (6) A draft news release; (7) Outreach plan; and (8) Draft refuge-specific regulation. Upon review of these documents, we have determined that the opening of these national wildlife refuges to hunting and fishing is compatible with the principles of sound fish and wildlife management and administration and otherwise will be in the public interest.

We are correcting administrative errors in 50 CFR part 32 that occurred when we inadvertently dropped migratory game bird hunting and sport fishing as activities open to the public in Lacreek National Wildlife Refuge in the State of South Dakota and sport fishing as an activity open to the public in Minidoka National Wildlife Refuge in the State of Idaho, and when we did not remove sport fishing from the list of activities open to the public in Delevan National Wildlife Refuge in the State of California. Lacreek National Wildlife Refuge has been open to sport fishing and migratory game bird hunting since the late 1960's. Minidoka National Wildlife Refuge has been open to sport fishing since the late 1980's. Delevan National Wildlife Refuge closed to sport fishing over a decade ago. We are adding Litchfield Wetland Management District in the State of Minnesota, which has been open since 1978, to clarify a hunting blind issue. Wetland management districts contain numerous waterfowl production areas. Land acquired as a “waterfowl production area” is annually open to hunting of migratory game birds, upland game, and big game (see 50 CFR 32.1).

We are making another technical correction by removing Mark Twain National Wildlife Refuge from the States of Illinois, Iowa, and Missouri. We have officially renamed units of Mark Twain National Wildlife Refuge as Great River National Wildlife Refuge, Middle Mississippi River National Wildlife Refuge, Port Louisa National Wildlife Refuge, Two Rivers National Wildlife Refuge, and Clarence Cannon National Wildlife Refuge. The headquarters administrative site will retain the name Mark Twain Refuge Complex.

We propose to allow the following wildlife-dependent recreational activities:

Hunting of migratory game birds on nine refuges, including:

Upland game hunting on seven refuges, including:

Big game hunting on nine refuges, including:

Sport fishing on nine refuges, including:

In accordance with NWRSAA and the RRA, we have determined that these openings are compatible and consistent with the purpose(s) for which we established the respective refuges. A copy of the compatibility determinations for these respective refuges is available by request to the contact noted under the heading ADDRESSES.

You may comment on this proposed rule by any one of several methods:

1. You may mail comments to: Acting Chief, Division of Conservation Planning and Policy, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 670, Arlington, VA 22203.

2. You may comment via the Internet to: Refuge_Specific_Comments@fws.gov. Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include: “Attn: 1018-AG58” and your full name and return mailing address in your Internet message. If you only use your e-mail address, we will consider your comment to be anonymous. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly at (703) 358-1744.

3. You may fax comments to: Acting Chief, Division of Conservation Planning and Policy, National Wildlife Refuge System, (703) 358-2248.

4. Finally, you may hand-deliver comments to the address mentioned above.

We seek comments on this proposed rule and will accept comments by any of the methods described above. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. In some circumstances, we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish for us to withhold your name and/or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Department of the Interior policy is, whenever practicable, to afford the public a meaningful opportunity to participate in the rulemaking process. We considered providing a 60-day rather than a 30-day comment period. However, we determined that an additional 30-day delay in processing these refuge-specific hunting and fishing regulations would hinder the effective planning and administration of our hunting and fishing programs. That delay would jeopardize establishment of hunting and fishing programs this year, or shorten their duration. Many of these rules also relieve restrictions and allow the public to participate in recreational activities on a number of refuges. In addition, in order to continue to provide for previously authorized hunting opportunities while at the same time provide for adequate resource protection, we must be timely in providing modifications to certain hunting programs on some refuges.

When finalized, we will incorporate this regulation into 50 CFR part 32. Part 32 contains general provisions and refuge-specific regulations for hunting and sport fishing on national wildlife refuges.

Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the Supplementary Information section of the preamble helpful in understanding the rule? (6) What else could we do to make the rule easier to understand?

In accordance with the criteria in Executive Order 12866, the Service asserts that this rule is not a significant regulatory action. The Office of Management and Budget (OMB) makes the final determination under Executive Order 12866.

a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government. A cost-benefit and full economic analysis is not required. The purpose of this rule is to open 12 refuges to hunting and fishing activities. We created five of these refuges from existing units of Mark Twain National Wildlife Refuge in Illinois, Iowa, and Missouri and, as such, hunting and fishing activities were already available to the public. We exclude these five refuges from the analysis because they are not an increase in supply of hunting and fishing opportunities. The seven new refuges are located in the States of Alabama, Mississippi, Kentucky, Indiana, Oklahoma, Maine, California, and New Jersey. Fishing and hunting are two of the priority public uses of national wildlife refuges recognized as legitimate and appropriate, and we should facilitate their implementation, subject to such restrictions or regulations as may be necessary to ensure their compatibility with the purpose of each refuge. Many of the 535 existing national wildlife refuges already have programs where we allow fishing and hunting. Not all refuges have the necessary resources and landscape that would make fishing and hunting opportunities available to the public. By opening these seven new refuges, we have determined that we can make high-quality and safe experiences available to the public. This rule establishes new hunting and/or fishing programs at the following refuges: Grand Bay, Clarks River, Big Oaks, Deep Fork, Petit Manan, Sacramento River, and Supawna Meadows National Wildlife Refuge.

Following a best-case scenario, if the refuges establishing new fishing and hunting programs were a pure addition to the supply of such activities, it would mean an estimated increase of 14,630 days of hunting and 18,460 user days of fishing (Table 1). However, the number of Americans participating in fishing and hunting activities has been stable since 1991. Any increase in the supply of these activities introduced by adding refuges where the activity is available will most likely be offset by other sites losing participants, especially if the new sites have higher quality fishing and/or hunting opportunities. Using the value of the difference in the upper and lower bounds of the 95 percent confidence interval for average consumer surplus to represent the estimate of the increase in consumer surplus for higher quality fishing and hunting (Walsh, Johnson, and McKean, 1990  1 ) yields an estimated increase in consumer surplus of $672,000 annually (2001 dollars based on consumer surplus quality change). If the possible fishing and hunting opportunities attributable to this rule are a pure addition to the current supply, then the consumer surplus will be slightly over $2 million annually. As stated earlier, the trend is flat in participation in fishing and hunting activities in the last 10 years and, therefore, if new refuges are open to these activities, the true estimate of the benefits will be closer to $672,000 annually. Consequently, this rule will have a small measurable economic benefit on the United States economy.

b. This proposed rule will not create inconsistencies with other agencies' actions. This action pertains solely to the management of the National Wildlife Refuge System. The fishing and hunting activities located on national wildlife refuges account for approximately 1 percent of the available supply in the United States. Any small, incremental change in the supply of fishing and hunting opportunities will not measurably impact any other agency's existing programs.

c. This proposed rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This proposed rule does not affect entitlement programs. There are no grants or other Federal assistance programs associated with public use of national wildlife refuges.

d. This proposed rule will not raise novel legal or policy issues. It opens seven additional refuges for fishing and hunting activities and continues the practice of allowing recreational public use of national wildlife refuges. Many refuges in the System currently have opportunities for the public to hunt and fish on refuge lands.

We certify that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). A Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

Congress created the National Wildlife Refuge System to conserve fish, wildlife, and plants and their habitats and facilitated this conservation mission by providing Americans opportunities to visit and participate in compatible wildlife-dependent recreation, including fishing and hunting, as priority general uses on national wildlife refuges and to better appreciate the value of, and need for, wildlife conservation.

This proposed rulemaking does not increase the types of recreation allowed on the System but establishes hunting and/or fishing programs on seven additional refuges. As a result, there will be opportunities for an increase in wildlife-dependent recreation on national wildlife refuges. The changes in the amount of permitted use are likely to increase visitor activity on the seven national wildlife refuges. But, as stated above, this is likely to be a substitute site for the activity and not necessarily an increase in participation rates for the activity. To the extent visitors spend time and money in the area of the refuge that would not have been spent there anyway, they contribute new income to the regional economy and benefit local businesses.

For purposes of analysis, we will assume that any increase in refuge visitation is a pure addition to the supply of the available activity. This will result in a best-case scenario and is expected to overstate the benefits to local businesses. The latest information on the distances traveled for fishing and hunting activities indicates that over 80 percent of the participants travel less than 100 miles from home to engage in the activity. This indicates that participants will spend their travel-related expenditures in the local economy. Since participation is scattered across the country, many small businesses benefit. The National Survey of Fishing, Hunting, and Wildlife Associated Recreation identifies expenditures for food and lodging, transportation, and other incidental expenses. Using the average expenditures for these categories with the expected maximum additional participation on the System as a result of this proposed rule yields the following estimates (Table 2) compared to total business activity for these sectors.

Using a national impact multiplier for wildlife-associated recreation developed for the report “1996 National and State Economic Impacts of Wildlife Watching” for the estimated increase in direct expenditures yields a total economic impact of $7.7 million dollars (2001 dollars). Since we know that most of the fishing and hunting occur within 100 miles of a participant's residence, then it is unlikely that most of this spending would be “new” money coming into a local economy and, therefore, would be offset with a decrease in some other sector of the local economy. The net gain to the local economies would be no more than $7.7 million and most likely considerably less. Since 80 percent of the participants travel less than 100 miles to engage in hunting and fishing activities, their spending patterns would not add new money in the local economy and, therefore, the real impact would be on the order of $1.5 million annually. Taken as percent of similar figures for this type of economic activity, it shows that the maximum increase at most (if all spending were new money) ranges from .01 percent to 3.58 percent for local retail trade spending (Table 3). Even the three counties in Indiana (Big Oaks National Wildlife Refuge) that would have a share of the $3.7 million increase in recreationist spending (if all spending were from outside the retail area) would average approximately $7,000 per establishment.

The majority of affected counties have a large percentage of their retail trade establishments that qualify as small businesses. With such a small increase in overall spending that we anticipate from this proposed rule, it is unlikely that a substantial number of small entities will have more than a small benefit from the increased recreationist spending near the affected refuges.

Many small businesses may benefit from some increased wildlife refuge visitation. However, we expect that much of this benefit will be offset as recreationists spend the same money in a different location. We expect that the incremental recreational opportunities will be scattered, and so we do not expect that the rule will have a significant economic effect (benefit) on a substantial number of small entities in any region or nationally.

The proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or more. The additional fishing and hunting opportunities at the seven refuges that do not currently have these programs would generate expenditures by anglers and hunters with an economic impact estimated at $7.7 million per year (2001 dollars). Consequently, the maximum benefit of this rule for businesses, both small and large, would not be sufficient to make this a major rule. The impact would be scattered across the country and would most likely not be significant in any local area.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This proposed rule will have only a slight effect on the costs of hunting and fishing opportunities of Americans. Under the assumption that any additional hunting and fishing opportunities would be of high quality, participants would be attracted to the refuge. If the refuge were closer to the participant's residence, then a reduction in travel costs would occur and benefit the participants. We do not have information to quantify this reduction in travel cost; but we have to assume that, since most people travel less than 100 miles to hunt and fish now, the reduced travel cost would be small for the additional days of hunting and fishing generated by this proposed rule. We do not expect this proposed rule to affect the supply or demand for fishing and hunting opportunities in the United States and, therefore, it should not affect prices for fishing and hunting equipment and supplies, or the retailers that sell equipment. Additional refuge hunting and fishing opportunities would account for less than .04 percent of the available opportunities in the United States.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. Because this proposed rule represents such a small proportion of recreational spending of a small number of affected hunters and anglers (approximately a maximum impact of $7.7 million annually), there will be no measurable economic effect on the wildlife-dependent industry, which has annual sales of equipment and travel expenditures of $72 billion nationwide. This proposed rule adds seven refuges to the list of refuges that have hunting and/or fishing programs. Refuges that establish hunting and fishing programs may hire additional staff from the local community to assist with the programs, but this would not be a significant increase with this proposed rule adding only seven refuges. Consequently, there are no anticipated significant employment or small business effects.

Since this rule applies to public use of federally owned and managed refuges, it does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

In accordance with Executive Order 12630, the rule does not have significant takings implications. This regulation will affect only visitors at national wildlife refuges and limit what they can do while they are on a refuge.

As discussed in the Regulatory Planning and Review and Unfunded Mandates Reform Act sections above, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment under Executive Order 13132. In preparing this proposed rule, we worked with State governments.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The regulation will clarify established regulations and result in better understanding of the regulations by refuge visitors.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule only adds seven refuges to the list of refuges that have hunting and/or fishing programs and makes minor changes to other refuges open to those activities, it is not a significant regulatory action under Executive Order 12866 and is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.

In accordance with Executive Order 13175, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no effects. We coordinate recreational use on national wildlife refuges with Tribal governments having adjoining or overlapping jurisdiction before we propose the regulations. This regulation is consistent with and not less restrictive than Tribal reservation rules.

This regulation does not contain any information collection requirements other than those already approved by the Office of Management and Budget under the Paperwork Reduction Act (OMB Control Number is 1018-0102). See 50 CFR 25.23 for information concerning that approval. 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 OMB control number.

In preparation for new openings, we include Section 7 consultation documents approved by the Service's Endangered Species program in the refuge's “openings package” for Regional review and approval from the Washington Office. We reviewed the changes in hunting and fishing regulations herein with regard to Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531-1543). For the national wildlife refuges proposed to open for hunting and/or fishing we have determined that Grand Bay, Supawna Meadows, Petit Manan, Sacramento River (for valley elderberry longhorn beetle), and Clarks River (for bald eagles) National Wildlife Refuges will not likely adversely affect and Clarks River (for Indiana bat) and Sacramento River National Wildlife Refuges will not affect the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat of such species within the System.

We also comply with Section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531-1543) when developing Comprehensive Conservation Plans, step-down management plans for public use of refuges, and prior to implementing any new or revised public recreation program on a refuge as identified in 50 CFR 26.32. We also make determinations required by the Endangered Species Act on a case-by-case basis before the addition of a refuge to the lists of areas open to hunting or fishing as contained in 50 CFR 32.7.

We analyzed this rule in accordance with the criteria of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)) and 516 DM 6, Appendix 1. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required.

A categorical exclusion from NEPA documentation applies to this amendment of refuge-specific hunting and fishing regulations since it is technical and procedural in nature, and the environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis (516 DM 2, Appendix 1.10).

Prior to the addition of a refuge to the list of areas open to hunting and fishing in 50 CFR part 32, we develop hunting and fishing plans for the affected refuges. We incorporate these proposed refuge hunting and fishing activities in the refuge Comprehensive Conservation Plans (CCPs) and/or other step-down management plans, pursuant to our refuge planning guidance in 602 FW 1, 3, and 4. We prepare these CCPs and step-down plans in compliance with section 102(2)(C) of NEPA, and the Council on Environmental Quality's regulations for implementing NEPA in 40 CFR parts 1500-1508. We invite the affected public to participate in the review, development, and implementation of these plans.

Individual refuge headquarters retain information regarding public use programs and the conditions that apply to their specific programs and maps of their respective areas. You may also obtain information from the Regional offices at the addresses listed below:

Leslie A. Marler, Management Analyst, National Wildlife Refuge System, Division of Conservation Planning and Policy, U.S. Fish and Wildlife Service, Arlington, VA 22203, is the primary author of this rulemaking document.

For the reasons set forth in the preamble, we propose to amend Title 50, Chapter I, subchapter C of the Code of Federal Regulations as follows: