The Federal Election Commission recently requested comment on proposed changes to its rules governing publicly financed presidential candidates, in both the primary and general elections, and national nominating conventions. See Notice of Proposed Rulemaking on Public Financing of Presidential Candidates and Nominating Conventions, 68 FR 18484 (Apr. 15, 2003) (“ Public Financing NPRM ”). The document states that the public comment period closed on May 9, 2003, and a hearing on the proposed rules was tentatively scheduled for May 19, 2003. On May 2, 2003, the United States District Court for the District of Columbia issued a decision in McConnell v. FEC, Civ. No. 02-582, 2003 WL 21003144 (D.D.C. May 1, 2003), notice of appeal filed (U.S. May 2, 2003), which addresses certain provisions of the Bipartisan Campaign Reform Act of 2002, Public Law 107-155, 116 Stat. 81 (Mar. 27, 2002). A portion of the notice of proposed rulemaking concerned the application of the Bipartisan Campaign Reform Act and the Commission's implementing regulations to national nominating conventions. See Public Financing NPRM, 68 FR at 18502-07. In order to permit commenters the opportunity to consider the McConnell v. FEC decision and its impact on national nominating conventions, the Commission is extending the comment period until May 23, 2003, and rescheduling the hearing on the proposed rules to June 6, 2003, at 10 a.m.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On November 24, 1999, Cessna Aircraft Company, One Cessna Boulevard, Wichita, KS 67277, applied for type certificate for their new Cessna Model 680 Sovereign airplane. The Model 680 Sovereign is a twin engine pressurized executive jet airplane with standard seating provisions for 12 passenger/crew and allowance for baggage and optional equipment. This airplane will have a maximum takeoff weight of 30,000 pounds with a wingspan of 63.1 feet and will have two aft-mounted Pratt & Whitney 306C engines.

Cessna Model 680 offers interior arrangements, which include single-occupant side-facing seat installations. These seats are installed on the LH and RH side of the cabin's forward section, forward of and opposite to the entry door respectively. Dynamic testing of all seats approved for occupancy during takeoff and landing is required by 14 CFR 25.562. The pass/fail criteria for the testing developed in Amendment 25-64 to § 25.562 focused primarily on fore/aft facing seats. Side facing seating installations were not adequately addressed for transport category airplane in this Amendment.

These special conditions are applicable to single-occupant side-facing seats only. They are not intended to be used for multiple-occupant side-facing divans or sofas, as they do not account for possible interaction among the occupants.

Under the provisions of 14 CFR 21.17, the Cessna Aircraft Company must show that the Model 680 Sovereign airplane meets the applicable provisions of 14 CFR part 25, effective February 1, 1965, as amended by Amendments 25-1 through 25-98; 14 CFR part 34, effective September 10, 1990, as amended by any amendment in effect on the date of certification. Subsequent changes have been made to § 21.101 as part of Amendment 21-77, but those changes do not become effective until June 10, 2003.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , 14 CFR part 25) do not contain adequate or appropriate safety standards for the Cessna Model 680 Sovereign airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Cessna Model 680 Sovereign must comply with the fuel vent and exhaust emission requirements of part 34 and the noise certification requirements of part 36, and the FAA must issue a finding of regulatory adequacy pursuant to § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.17(a)(2), Amendment 21-69, effective September 16, 1991. Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1), Amendment 21-69, effective September 16, 1991.

The Cessna Model 680 offers interior arrangements, which include single-occupant side-facing seat installations. These seats are installed on the LH and RH side of the cabin's forward section, forward and opposite to the entry door respectively. Dynamic testing of all seats approved for occupancy during takeoff and landing is required by § 25.562. The pass/fail criteria for the testing developed in Amendment 25-64 to § 25.562 focused primarily on fore/aft facing seats. Side facing seating installations were not adequately addressed for transport category airplanes in this Amendment.

The following injury criteria and testing represent the minimum acceptable standards, and are being proposed for certification of the Model 680 single-occupant side-facing seats, and are to be included as requirements in the proposed special conditions. However, the existing requirements call for a “no yaw” test condition. Cessna is proposing to demonstrate values of thoracic trauma index (TTL) and lateral pelvic acceleration (LPA) for a “10 degree yaw” for which it has some test data. In this case, Cessna must show the “10 degree yaw” yields results that will only differ slightly from the “no yaw” condition and that these differences would not be of such magnitude as to exceed the maximum allowable.

(a) Existing Criteria. As referenced by § 25.785(b), all injury protection criteria of §§ 25.562(c)(1) through (c)(6) apply to the occupants of the single-occupant side-facing seats. Head injury criteria (HIC) assessments are only required for head contact with the seat and/or adjacent structures.

(b) Body-to-wall/furnishing contact. The seat must be installed aft of a structure such as an interior wall or furnishing that will contact the pelvis, upper arm, chest, or head of an occupant seated next to the structure. A conservative representation of the structure and its stiffness must be included in the tests. It is recommended, but not required, that the contact surface of this structure be covered with at least two inches of energy absorbing protective padding (foam or equivalent), such as Ensolite.

(c) Thoracic Trauma. Testing with a Side Impact Dummy (SID), as defined by 49 CFR part 572, subpart F, or its equivalent, must be conducted and TTI injury criteria acquired with the SID must be less than 85, as defined in 49 CFR part 572, subpart F. Side Impact Dummy TTI must be processed as defined in Federal Motor Vehicle Safety Standard (FMVSS) part 571.214, section S6.13.5. Rational analysis, comparing an installation with another installation where TTI data were acquired and found acceptable, may also be viable.

(d) Pelvis. Pelvic lateral acceleration must not exceed 130g, pelvic acceleration data must be processed as defined in FMVSS part 571.214, section S6.13.5

(f) Shoulder Strap Loads. Where upper torso straps (shoulder straps) are used for sofa occupants, tension loads in individual straps must not exceed 1,750 pounds. If dual straps are used for restraining the upper torso, the total strap tension loads must not exceed 2,000 pounds.

As discussed above, these special conditions are applicable to the Cessna Model 680 Sovereign. Should Cessna Aircraft Company apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101(a)(1), Amendment 21-69, effective September 16, 1991.

This action affects only certain novel or unusual design features on the Cessna Model 680 Sovereign airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for the Cessna Aircraft Company Model 680 Sovereign airplanes.

The minimum acceptable standards of injury criteria and testing requirements for dynamic certification of the Model 680 side-facing single-occupant seats are as follows:

(a) Existing Criteria. As referenced by § 25.785(b), all injury protection criteria of §§ 25.562(c)(1) through (c)(6) apply to the occupants of the side-facing seats. Head injury criteria (HIC) assessments are only required for head contact with the seat and/or adjacent structures.

(b) Body-to-wall/furnishing contact. The seat must be installed aft of a structure such as an interior wall or furnishing that will contact the pelvis, upper arm, chest, or head of an occupant seated next to the structure. A conservative representation of the structure and its stiffness must be included in the tests. It is recommended, but not required, that the contact surface of this structure must be covered with at least two inches of energy absorbing protective padding (foam or equivalent), such as Ensolite.

(c) Thoracic Trauma. Testing with a Side Impact Dummy (SID), as defined by 49 CFR Part 572, Subpart F, or its equivalent, must be conducted and TTI injury criteria acquired with the SID must be less than 85, as defined in 49 CFR Part 572, Subpart F. SID TTI must be processed as defined in Federal Motor Vehicle Safety Standard (FMVSS) Part 571.214, section S6.13.5. Rational analysis, comparing an installation with another installation where TTI data were acquired and found acceptable, may also be viable.

(d) Pelvis. Pelvic lateral acceleration must not exceed 130g, pelvic acceleration data must be processed as defined in FMVSS Part 571.214, section S6.13.5

(f) Shoulder Strap Loads. Where upper torso straps (shoulder straps) are used for occupants, tension loads in individual straps must not exceed 1,750 pounds. If dual straps are used for restraining the upper torso, the total strap tension loads must not exceed 2,000 pounds.

The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES . We will consider all comments received on or before the closing date. We may amend this proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this proposed AD action and determining whether we need to take additional rulemaking action.

The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.

If you want FAA to acknowledge the receipt of your mailed comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2002-CE-05-AD.” We will date stamp and mail the postcard back to you.

Reports of fatigue cracks on Cessna 401, 402, and 411 series airplanes caused FAA to take AD action (AD 79-10-15 R2, Amendment 39-3711) to require repetitive inspections of the right and left wing spar lower cap areas for fatigue cracks and to require wing spar cap repair or replacement as necessary.

Accomplishment of the inspections required by AD 79-10-15 R2 is required in accordance with Cessna Service Bulletin ME79-16, Revision 3, dated February 8, 1980.

AD 79-10-15 R2 allowed for the incorporation of Cessna Service Kit SK402-36 or SK411-56 on the front wing spar lower cap as terminating action for the repetitive inspections on the applicable wing.

Since issuance of AD 79-10-15, Cessna has analyzed the wing, including fatigue and crack growth analyses, on the affected airplanes. Analysis included:

The inspections required by AD 79-10-15 R2 in accordance with Cessna Service Bulletin ME79-16, Revision 3, are accomplished using a surface eddy current inspection method.

Based on the analysis, Cessna has found that the eddy current method will not find the crack until it is .03 inch longer than the critical crack length. When the crack reaches the critical length, it is not reliably detectable because it is under the head of the fastener. Once the main spar cap is severed, the remaining structure will no longer meet the residual strength requirements. Wing separation could then occur under loading conditions significantly less than those established for the design limit load.

Cessna reported only one instance where cracks were detected using the nondestructive inspection (NDI) eddy current procedure. There are other reported instances where cracks were detected visually in the wheel well area on the aft flange. The problem with visual inspections is the access doubler flanges cover a large percentage of the forward spar flange. This limits the effectiveness of the visual inspections.

To meet industry NDI standards, cracks need to be found on Cessna Models 401, 401A, 401B, 402, 402A, 402B, 411, and 411A airplanes through NDI inspection methods with a 90-percent probability of detection at a 95-percent confidence level.

Cessna's analysis indicates that the probability and confidence levels are not being met.

Cessna has issued the following:

This service information includes procedures for inspecting and modifying the lower wing spar caps.

After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that:

This proposed AD would supersede AD 79-10-15 R2 with a new AD that would require you to either (depending on the aircraft configuration):

On July 10, 2002, FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

We estimate that this proposed AD affects 400 airplanes in the U.S. registry.

We estimate the following costs to accomplish the proposed modification and initial inspection:

The above figures do not take into account the cost of repetitive inspections. The FAA does not have any way of determining the number of repetitive inspections each owner/operator would incur during the operating life of the affected airplanes.

The regulations proposed herein would not have a substantial direct effect 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. Therefore, it is determined that this proposed rule would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action has been placed in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

How do I comment on this proposed AD? The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the proposed rule's docket number and submit your comments to the address specified under the caption ADDRESSES . We will consider all comments received on or before the closing date. We may amend this proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this proposed AD action and determining whether we need to take additional rulemaking action.

Are there any specific portions of this proposed AD I should pay attention to? The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.

How can I be sure FAA receives my comment? If you want FAA to acknowledge the receipt of your mailed comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2003-CE-20-AD.” We will date stamp and mail the postcard back to you.

What events have caused this proposed AD? The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, recently notified FAA that an unsafe condition may exist on certain Dornier Models 228-100, 228-101, 228-200 and 228-201, 228-202, and 228-212 airplanes. The LBA reports an occurrence of stuck contacts of the power relay of the heating circuit to the auxiliary cabin heater, Dornier option P05 or P09.

What are the consequences if the condition is not corrected? Failure of the auxiliary cabin heater could lead to overheating and smoke in the cockpit.

Is there service information that applies to this subject? Dornier has issued Service Bulletin No. 228-249, Revision No. 1, dated November 19, 2001.

What are the provisions of this service information? The service bulletin includes procedures for modifying the auxiliary cabin heater wiring.

What action did the LBA take? The LBA classified this service bulletin as mandatory and issued German AD Number 2002-264, dated September 19, 2002, in order to ensure the continued airworthiness of these airplanes in Germany.

Was this in accordance with the bilateral airworthiness agreement? These airplane models are manufactured in Germany and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.

Pursuant to this bilateral airworthiness agreement, the LBA has kept FAA informed of the situation described above.

What has FAA decided? The FAA has examined the findings of the LBA; reviewed all available information, including the service information referenced above; and determined that:

What would this proposed AD require? This proposed AD would require you to incorporate the actions in the previously-referenced service bulletin.

How does the revision to 14 CFR part 39 affect this proposed AD? On July 10, 2002, FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

How many airplanes would this proposed AD impact? We estimate that this proposed AD affects 14 airplanes in the U.S. registry.

What would be the cost impact of this proposed AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish this proposed modification. We have no way of determining the number of airplanes that may need such modification:

Would this proposed AD impact various entities? The regulations proposed herein would not have a substantial direct effect 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. Therefore, it is determined that this proposed rule would not have federalism implications under Executive Order 13132.

Would this proposed AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this proposed action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action has been placed in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

How do I comment on this proposed AD? The FAA invites comments on this proposed rule. You may submit whatever written data, views, or arguments you choose. You need to include the rule's docket number and submit your comments to the address specified under the caption ADDRESSES . We will consider all comments received on or before the closing date. We may amend this proposed rule in light of comments received. Factual information that supports your ideas and suggestions is extremely helpful in evaluating the effectiveness of this proposed AD action and determining whether we need to take additional rulemaking action.

Are there any specific portions of this proposed AD I should pay attention to? The FAA specifically invites comments on the overall regulatory, economic, environmental, and energy aspects of this proposed rule that might suggest a need to modify the rule. You may view all comments we receive before and after the closing date of the rule in the Rules Docket. We will file a report in the Rules Docket that summarizes each contact we have with the public that concerns the substantive parts of this proposed AD.

How can I be sure FAA receives my comment? If you want FAA to acknowledge the receipt of your mailed comments, you must include a self-addressed, stamped postcard. On the postcard, write “Comments to Docket No. 2002-CE-57-AD.” We will date stamp and mail the postcard back to you.

Has FAA taken any action to this point? Reports of fatigue cracks on Cessna 401, 402, and 411 series airplanes caused FAA to take AD action (AD 79-10-15 R2, Amendment 39-3711) to require repetitive inspections of the right and left wing spar lower cap areas for fatigue cracks and to require wing spar cap repair or replacement as necessary.

Cessna Models 402C and 414A airplanes incorporate a similar design to those airplanes affected by AD 79-10-15 R2. We issued AD 2000-23-01, Amendment 39-11971 (65 FR 70645, November 27, 2000), to require repetitive inspections of the forward, aft, and auxiliary wing spars for cracks on Cessna Models 402C airplanes with repair or replacement as necessary.

There is no similar AD action addressing the Model 414A airplanes.

What has happened since AD 79-10-15 R2 and AD 2000-23-01 to initiate this proposed action? Since issuance of AD 79-10-15 and AD 2000-23-01, Cessna has analyzed the wing, including fatigue and crack growth analyses, on the affected airplanes. Analysis included:

The inspections required by AD 79-10-15 R2 in accordance with Cessna Service Bulletin ME79-16, Revision 3, are accomplished using a surface eddy current inspection method.

Based on the analysis, Cessna has found that the eddy current method will not find the crack until it is .03 inch longer than the critical crack length. When the crack reaches the critical length, it is not reliably detectable because it is under the head of the fastener. Once the main spar cap is severed, the remaining structure will no longer meet the residual strength requirements. Wing separation could then occur under loading conditions significantly less than those established for the design limit load.

Cessna reported only one instance where cracks were detected using the nondestructive inspection (NDI) eddy current procedure. There are other reported instances where cracks were detected visually in the wheel well area on the aft flange. The problem with visual inspections is the access doubler flanges cover a large percentage of the forward spar flange. This limits the effectiveness of the visual inspections.

To meet industry NDI standards, cracks need to be found on Cessna Models 402C and 414A airplanes through NDI inspection methods with a 90-percent probability of detection at a 95-percent confidence level.

Cessna's analysis indicates that the probability and confidence levels are not being met.

Is there service information that applies to this subject? Cessna has issued Service Bulletin MEB02-05 and Cessna Service Kit SK402-47, both dated June 24, 2002. This service information includes procedures for inspecting and modifying the lower wing spar caps.

What has FAA decided? After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that:

What would this proposed AD require? This proposed AD would supersede AD 2000-23-01 with a new AD that would apply to Cessna Models 402C and 414A airplanes and would require you to:

How does the revision to 14 CFR part 39 affect this proposed AD? On July 10, 2002, FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs FAA's AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

How many airplanes would this proposed AD impact? We estimate that this proposed AD affects 656 airplanes in the U.S. registry.

What would be the cost impact of this proposed AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish the proposed modification and initial inspection:

The above figures do not take into account the cost of repetitive inspections. The FAA does not have any way of determining the number of repetitive inspections each owner/operator would incur during the operating life of the affected airplanes.

Would this proposed AD impact various entities? The regulations proposed herein would not have a substantial direct effect 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. Therefore, it is determined that this proposed rule would not have federalism implications under Executive Order 13132.

Would this proposed AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this proposed action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action has been placed in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations(14 CFR part 39) as follows:

In 1973, fenfluramine, its salts, isomers and salts of isomers were placed into schedule IV of the Controlled Substances Act (CSA), 21 CFR 1308.14(d). On March 18, 1991, Interneuron Pharmaceuticals, Inc., the manufacturer of a fenfluramine product (dexfenfluramine, brand name Redux), petitioned DEA to decontrol fenfluramine. The fenfluramine product Redux, an anorectic indicated for the management of exogenous obesity, was approved by the Food and Drug Administration (FDA) of the Department of Health and Human Services (DHHS) for marketing in the United States in 1996. After receiving Interneuron's petition, and in accordance with the CSA requirements at 21 U.S.C. 811(b), DEA reviewed available data about fenfluramine. On June 3, 1996, the DHHS Assistant Secretary of Health submitted a recommendation to DEA that the substance be decontrolled. As a result of DEA's review and DHHS's recommendation, a notice of proposed rulemaking titled “Schedules of Controlled Substances: Proposed Removal of Fenfluramine From the Controlled Substances Act” was published on May 6, 1997 in the Federal Register (62 FR 24620). This notice of proposed rulemaking was in direct response to Interneuron's petition to decontrol fenfluramine. A sixty day comment period was provided during which four comments were received, two in favor of the proposed action and two against decontrol.

On July 8, 1997, two months after the proposed rulemaking was published, FDA issued a public health advisory regarding the use of fenfluramine, especially in conjunction with phentermine (commonly known as “fen-phen”), citing evidence of significant side effects associated with fenfluramine. FDA announced a voluntary withdrawal by the pharmaceutical manufacturers of fenfluramine (brand name Pondimin) and dexfenfluramine (brand name Redux) from United States markets on September 15, 1997. DHHS issued a final rule on March 8, 1999 listing drug products that were withdrawn or removed from the market because they were found to be unsafe or not effective, including fenfluramine hydrochloride. (64 FR 10944). This regulation is codified at 21 CFR 216.24.

In a February 27, 2003 letter addressed to DEA's Acting Administrator, John B. Brown III, Indevus Pharmaceuticals, Inc., formerly known as Interneuron Pharmaceuticals, Inc., wrote to withdraw its petition to decontrol fenfluramine because the company no longer markets fenfluramine products in the United States.

As a result of the recent withdrawal of the petition and the earlier removal of the drug from the United States marketplace by FDA due to health and safety concerns, DEA now has reason to reconsider its proposed rulemaking. DEA no longer considers it appropriate to remove fenfluramine from schedule IV. The health and safety concerns that prompted the manufacturers' voluntary withdrawal of fenfluramine from the marketplace and DHHS's subsequent codification of this withdrawal, see 21 CFR 216.24, occurred after DEA's proposed rulemaking was published. Based on these events, DEA has determined that fenfluramine's current placement in schedule IV should not be altered. Accordingly, DEA withdraws the proposed rule published in the Federal Register on May 6, 1997 (62 FR 24620) and hereby terminates this rulemaking.

On March 20, 2003, the Coast Guard published a notice of proposed rulemaking entitled “Safety and Security Zone; Cove Point Liquefied Natural Gas Terminal, Chesapeake Bay, Maryland. (68 FR 13647). The Coast Guard received several requests for public meetings before the comment period closed on April 21, 2003. The Captain of the Port has decided that a public meeting is in the public's interest and is therefore issuing this notice to advise the public of the time and place of the meeting, and of the reopening of the comment period.

The public meeting will be held June 5, 2003, from 6 p.m. to 9 p.m., at the Holiday Inn, 155 Holiday Drive, Solomon's Island, Maryland. Attendance is open to the public. During this meeting, the Coast Guard will receive comments from the public on the proposed rule for the safety and security zone.

With advance notice, members of the public may provide oral statements. Oral statements will be limited to five minutes. Persons wishing to make oral statements should notify Commander Gordon Loebl listed under FOR FURTHER INFORMATION CONTACT no later than two days before the meeting.

Written comments may be submitted to the docket under ADDRESSES 30 minutes before, during, or up to one week after the meeting. You may also submit written comments directly to Coast Guard personnel at the public meeting.

For information on facilities or services for individuals with disabilities, or to request assistance at the meeting, contact Commander Gordon Loebl listed under FOR FURTHER INFORMATION CONTACT as soon as possible.

See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations Section of this Federal Register .

See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations section of this Federal Register .

Regulated Entities. Categories and entities potentially affected by this action include all source categories listed pursuant to section 112(c) and (k) of the CAA:

This list is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine your source category-specific section 112 regulation. Additional information on the listing of source categories is available at http://www.epa.gov/ttn/atw/socatlst/socatpg.html. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Docket. EPA has established an official public docket for this action under Docket ID No. OAR-2002-0044. The official public docket is the collection of materials that is available for public viewing in the General Provisions Docket at the EPA Docket Center (Air Docket), EPA West, Room B-108, 1301 Constitution Avenue, NW., Washington, DC 20004. The Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the reading room is (202) 566-1744 and the telephone number for the Air Docket is (202) 566-1742.

Electronic Access. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search” and key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as confidential business information (CBI) and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. The EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility previously identified in this document.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

Comments. You may submit comments electronically, by mail, by facsimile, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments submitted after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. Once in the system, select “search” and key in Docket ID No. OAR-2002-0044, Category VI, Part 63 General Provisions (Subpart A) Pollution Prevention Compliance Alternative Amendments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

Comments may be sent by electronic mail (e-mail) to air-and-r-docket@epa.gov, Attention Docket ID No. OAR-2002-0044, Category VI, Part 63 General Provisions (Subpart A) Pollution Prevention Compliance Alternative Amendments. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket.

You may submit comments on a disk or CD ROM that you mail to the mailing address identified in this document. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

By Mail. Send your comments (in duplicate, if possible) to: General Provisions Docket, Category VI, Part 63 General Provisions (Subpart A) Pollution Prevention Compliance Alternative Amendments, EPA Docket Center (Air Docket), U.S. EPA West (MD-6102T), Room B-108, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. OAR-2002-0044.

By Hand Delivery or Courier. Deliver your comments (in duplicate, if possible) to: EPA Docket Center, Room B-108, U.S. EPA West, 1301 Constitution Avenue, NW., Washington, DC 20004, Attention Docket ID No. OAR-2002-0044, Category VI, Part 63 General Provisions (Subpart A) Pollution Prevention Compliance Alternative Amendments. Such deliveries are only accepted during the Docket Center's normal hours of operation as identified in this document.

By Facsimile. Fax your comments to: (202) 566-1741, Attention General Provisions Docket, Category VI, Part 63 General Provisions (Subpart A) Pollution Prevention Compliance Alternative Amendments, Docket ID No. OAR-2002-0044.

CBI. Do not submit information that you consider to be CBI through EPA's electronic public docket or by e-mail. Send or deliver information identified as CBI only to the following address: Roberto Morales, OAQPS Document Control Officer (MD-C404-02), Attention Steve Fruh, U.S. EPA, Research Triangle Park, NC 27709, Attention Docket ID No. OAR-2002-0044. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of this proposal will also be available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of this action will be posted on the TTN's policy and guidance page for newly proposed rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Concurrent Rulemaking: In a proposed rule dated August 13, 2002 (67 FR 52674), EPA solicited comments on the incentives designed for Performance Track member facilities. These proposed amendments contain additional incentives for Performance Track member facilities. Persons interested in doing so are encouraged to comment on the additional incentives as they specifically relate to the MACT incentives in the Performance Track proposed rule. It is EPA's intent to finalize both proposed rules as they relate to the NESHAP General Provisions in one final rulemaking. In the final rule, EPA intends to reconcile the two different definitions of “pollution prevention” and “source at a Performance Track member facility” as they appear in these proposed amendments and in the Performance Track proposed rule by adopting the definitions contained in these proposed amendments.

Outline. The information presented in this preamble is organized as follows:

We are proposing to amend the NESHAP General Provisions in 40 CFR part 63, subpart A. The individual NESHAP (which are frequently referred to as MACT standards) are codified as subparts within 40 CFR part 63. We are proposing two options:

• Option 1: If a facility completely eliminates all HAP emissions from all sources of emissions regulated by the subpart, it could request to no longer be subject to that subpart. This option would be available only where the subpart does not already require complete elimination of HAP emissions from any of the regulated sources of emissions.

• Option 2: If a facility uses P2 to reduce HAP emissions either to the level required by the subpart, or below, it could request “P2 alternative compliance requirements.” The alternative compliance requirements would include monitoring, recordkeeping, reporting, and/or other requirements which match the P2 measures implemented by the facility. Alternative emission limits could not be included. If approved, the alternative compliance requirements would replace specified requirements in the subpart. This option would be available for any regulated portion of the facility; it would not be necessary for the facility to implement P2 on every source of emissions that is subject to the subpart. Under this option, the facility would remain subject to the subpart, but some of the requirements would be changed.

Either option would be effective only as long as the facility continued to use the P2 measures and to eliminate or reduce HAP emissions as described in the approved request. If the facility discontinued the P2 measures or failed to eliminate or reduce HAP emissions as approved, all applicable requirements of the subpart would again apply immediately, and the facility would be required to comply beginning on that date.

We are also proposing additional incentives for sources at facilities that are members of the Performance Track program.

Consistent with the Pollution Prevention Act of 1990 (42 U.S.C. 13101-13109), it is our policy to promote and encourage P2 in all our programs. We seek to reduce HAP emissions with alternative approaches that achieve results in innovative and sustainable ways. Preventing pollution at the source is our strategy of first choice. Pollution prevention strategies allow facilities the advantage of meeting pollution reduction goals in ways that are most cost effective and appropriate for their individual situations. Furthermore, State and local air pollution agencies have urged us on numerous occasions to do more to encourage P2 in the MACT standards program. For these reasons, we are proposing revisions to the part 63 General Provisions which encourage the development and implementation of P2 measures at facilities that are already subject to NESHAP subparts. By working with State and local agencies in a series of meetings, we have developed this proposal to further this goal.

We are also proposing provisions that would further promote improved environmental performance through incentives that are only available to facilities participating in the Performance Track program. For example, the Administrator will designate a central contact within the EPA to facilitate and expedite the review of a Performance Track member facility's request for pollution prevention alternatives. The Performance Track program was created to recognize, provide incentives, and reward individual facilities that go beyond compliance in their environmental operations and management. The Performance Track program is based on the following premises: Better environmental performance warrants different oversight; the EPA should induce facilities to perform beyond basic compliance; environmental accomplishments should be recognized and rewarded; private and public resources should be used efficiently to these ends; and demonstrated innovative ideas should be included in regulations.

The Agency selects its Performance Track members for entry into the program based on certain criteria. Member facilities must:

• Have adopted and implemented an environmental management system that includes specific elements;

• Be able to demonstrate environmental achievements and commit to continued improvement in particular environmental categories;

• Engage the public, and report to the public on the facilities' performance; and

• Have a record of sustained compliance with environmental requirements.

In addition, member facilities must commit to providing annual reports on the status of their efforts to achieve their commitments to making improvements in specific environmental categories and to maintaining their qualifications as program participants.

In line with these premises and criteria, we are proposing provisions that would provide additional incentives only to those sources at facilities that are members of the Performance Track program.

We are proposing to amend the General Provisions for the MACT-based NESHAP, which are codified at 40 CFR part 63, subpart A. The General Provisions establish the framework for emission standards and other requirements developed pursuant to section 112 of the CAA. The General Provisions eliminate the repetition of general information and requirements in individual NESHAP subparts by consolidating all generally applicable information in one location. They include sections on applicability, definitions, compliance dates and requirements, monitoring, and recordkeeping and reporting, among others. In addition, they include administrative sections concerning actions that the EPA Administrator must take, such as making determinations of applicability, reviewing applications for approval of new construction, responding to requests for extensions or waivers of applicable requirements, and generally enforcing NESHAP. The General Provisions apply to every facility that is subject to a NESHAP subpart, except where specifically overridden by that subpart.

We are proposing to add definitions for “pollution prevention” and “source at a Performance Track member facility” to § 63.2 of the General Provisions.

The proposed amendments would also add two sections to the General Provisions. New § 63.17 (Option 1) would provide a mechanism for a facility that uses P2 to eliminate completely all HAP emissions regulated under a NESHAP subpart to become exempt from that subpart. New § 63.18 (Option 2) would provide a mechanism enabling a facility that uses P2 to reduce HAP emissions to at least the level required by a NESHAP subpart to replace select requirements of the subpart with requirements appropriate to the P2 measures.

We are proposing to add the following definitions for “pollution prevention” and “source at a Performance Track member facility” to § 63.2 of the General Provisions:

Pollution prevention means source reduction as defined under the Pollution Prevention Act. The definition is as follows:

(1) Source reduction is any practice that:

(i) Reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; and

(ii) Reduces the hazards to public health and the environment associated with the release of such substances, pollutants, or contaminants.

(2) The term source reduction includes equipment or technology modifications, process or procedure modifications, reformulation or redesign of products, substitution of raw materials, and improvements in housekeeping, maintenance, training, or inventory control.

(3) The term source reduction does not include any practice that alters the physical, chemical, or biological characteristics or the volume of a hazardous substance, pollutant, or contaminant through a process or activity which itself is not integral to and necessary for the production of a product or the providing of a service.

This definition is taken directly from the Pollution Prevention Act of 1990 (42 U.S.C. 13101-13109). We are proposing to add this definition to clarify the types of actions that we intend to consider in qualifying a facility for Option 1 or 2.

The Pollution Prevention Act establishes the following hierarchy for managing pollution and wastes: source reduction, recycling, treatment, and disposal. Because Congress' primary focus in this statute was source reduction, we are proposing to limit availability of Options 1 and 2 to facilities whose P2 measures qualify as source reduction.

Source at a Performance Track member facility means a major or area source located at a facility which has been accepted by EPA for membership in the Performance Track program (as described at http://www.epa.gov/performancetrack, formerly known as the Achievement Track Program) and is still a member of the program. The Performance Track program is a voluntary public-private partnership that encourages continuous environmental improvement through the use of environmental management systems, local community outreach, and measurable results.

We are proposing to add § 63.17 to the General Provisions to address facilities that were subject to a NESHAP subpart on the first applicable compliance date, and which subsequently have implemented P2 measures that eliminate all HAP emissions that are regulated under that subpart. Under the proposed provision, such facilities could submit a request to the Administrator to no longer be subject to the subpart. If approved, the facility would no longer be subject to the subpart, as long as it does not resume emitting HAP from the regulated source(s) of emissions.

A facility would be eligible for Option 1 if the following three conditions are met for a particular NESHAP subpart:

• The facility was subject to the subpart on the first compliance date that applied to the facility under the subpart.

• The facility has implemented P2 measures which ensure that no HAP is emitted from any source of emissions that is subject to any requirement under the subpart.

• None of the emission limitations under the subpart already require the complete elimination of HAP emissions.

By “first applicable compliance date” we mean the first date by which a source must comply with an emission limitation or other substantive regulatory requirement ( i.e. , emission limit, leak detection and repair program, work practice standard, housekeeping measure, etc., but not a notice requirement) in the applicable NESHAP subpart. For an existing major source, the first applicable compliance date is the compliance date defined in the subpart for such sources, typically 3 years after the effective date ( i.e. , promulgation date) of the subpart. (This is also true for subparts that apply to area sources.) For subparts that have multiple and staggered compliance dates for different emission limitations, this means the first such date. For a new source, the first applicable compliance date is either the date of startup or the effective date of the subpart, whichever is later.

We have included this condition because this mechanism is intended primarily for facilities that have initially been subject to a NESHAP subpart and complied through conventional means, such as add-on emission control equipment or mandated work practices. In this way, we intend to encourage and reward the development and implementation of P2 measures for such facilities.

As a general matter, we already encourage facilities to develop and implement P2 measures prior to the first applicable compliance date. Facilities that eliminate HAP through P2 (or otherwise) prior to the first compliance date avoid becoming subject to major source NESHAP subparts. The proposed General Provisions section (§ 63.17) would extend the same benefits to facilities that implement P2 measures to eliminate HAP after this initial window of opportunity. This condition would require the facility to use P2 to reduce HAP emissions to zero for all the sources of emissions subject to any requirement under a particular NESHAP subpart. For purposes of this proposal, “pollution prevention” means “source reduction” as defined in the Pollution Prevention Act. As discussed earlier in this preamble, we are proposing to add this definition to § 63.2 of the General Provisions.

By “sources of emissions” we mean all emission units or processes, which includes sources of fugitive emissions as well as sources with identifiable points of emissions (such as stacks). “Subject to any requirement under the subpart” refers to sources of emissions to which any type of requirement applies under the subpart. This includes sources of emissions to which emission limitations apply. “Emission limitations” include operation and maintenance, design, equipment, work practice, and operational requirements, as well as emission limits, opacity limits, operating limits, and visible emissions limits. Moreover, this includes sources of emissions that are below a cutoff in the subpart so that an emission limitation does not apply, but monitoring or recordkeeping requirements apply.

Option 1 would apply subpart by subpart. That is, a facility could use this mechanism to cease being subject to one NESHAP subpart, even if it continued to emit HAP from equipment that is subject to a different NESHAP subpart.

Option 1 would be “all or nothing.” A facility would not be eligible to use this mechanism if it eliminated HAP emissions from only some of the sources of emissions that are regulated under the NESHAP subpart. For example, if a subpart includes multiple affected sources, a facility could not use this provision to become exempt from the subpart for individual affected sources. However, such facilities could likely use the second option to obtain reduced monitoring, recordkeeping, and reporting requirements for those affected sources or individual sources of emissions for which they have eliminated HAP emissions.

Option 1 could be used only when none of the emission limitations in the subpart require the facility to completely eliminate HAP emissions. Any zero HAP limitation could only be achieved through P2. (Add-on controls, work practices, etc., can never achieve zero HAP emissions as long as HAP are used or produced.) Thus, a facility that implements P2 to eliminate HAP emissions from the subject source of emissions is simply meeting the required limitation. We do not believe that such a facility should be exempted from an emission limitation, and the associated monitoring, recordkeeping, and reporting, if the subpart already has a requirement to meet a zero HAP limitation.

Furthermore, we believe that subparts that include a requirement to meet a zero HAP emission limitation contain associated compliance provisions (such as testing, monitoring, recordkeeping, and reporting) that are appropriate for that limitation, and that no further relief is warranted. However, if a facility implements P2 measures that were unanticipated during development of the subpart, rendering the subpart's compliance provisions inappropriate, the facility could use the second option to obtain appropriate provisions.

It should be noted that requirements for zero visible emissions or zero opacity do not qualify as “zero HAP emission limitations.” Such limits can be met without completely eliminating HAP from a process. Thus, such limits do not preclude a source from using this option.

Under Option 1, a facility could submit a written request to the Administrator to no longer be subject to the subpart at any time after the subpart's first applicable compliance date. As defined in § 63.2 of the General Provisions, “Administrator” means the EPA Administrator or his or her authorized representative, such as a State that has been delegated the authority to implement the provisions of part 63. For Performance Track member facilities, the Administrator would designate a central contact within the EPA to facilitate and expedite the review of such requests for a P2 exemption. Owners and operators of Performance Track member facilities would be encouraged to submit their requests to the designated Performance Track contact within EPA in addition to the EPA Administrator.

The request may include any information that the facility considers useful in demonstrating that the subpart should no longer apply. At a minimum, the written request would be required to include these six items:

• A statement identifying the NESHAP subpart and the operations that are currently subject to the subpart, and indicating that the facility is applying to no longer be subject to the subpart.

• A description of the P2 measures used to eliminate HAP emissions and a demonstration that the measures qualify as P2 as defined in § 63.2.

• A demonstration that the P2 measures have eliminated all HAP emissions from each and every source of emissions subject to an emission limitation under the subpart.

• Documentation that the subpart does not include a limit of zero HAP emissions for any of the sources of emissions subject to an emission limitation under the subpart.

• A certification (signed by a responsible official) that the facility will not resume emitting HAP without notifying the Administrator in writing at least 30 days prior to doing so.

• A certification (signed by a responsible official) agreeing that, upon resuming HAP emissions, the relevant subpart again applies, and the facility must immediately comply with the requirements of the subpart.

The first four items that would be required simply identify the NESHAP subpart and the affected equipment, indicate that the facility wishes to use this provision to be exempt from the subpart, and demonstrate that the facility meets the eligibility requirements. The fifth is an enforceable commitment by the facility not to resume emitting HAP from the affected operations without giving at least 30 days written notice. The sixth is an enforceable acknowledgment by the facility that if it resumes emitting HAP from the affected operations, the relevant subpart applies immediately and the facility would be required to comply with the subpart immediately upon beginning to emit HAP.

A facility that submits a request under Option 1 would remain subject to the NESHAP subpart in question until the Administrator notifies it in writing that the request to no longer be subject to the subpart has been approved. When the Administrator receives a request under Option 1, he or she would notify the facility in writing of approval or intent to deny approval within 45 days after receiving the original request. (Performance Track member facilities would be notified within 30 days.) However, failure by the Administrator to meet this deadline would not constitute approval of the request.

If the Administrator intends to disapprove the request, he or she would include the following three items in the written notification:

• Notice of the information and findings on which the intended disapproval is based.

• Notice of the opportunity for the facility to present additional information before final action on the request.

• A deadline for the facility to present the additional information.

If the facility fails to provide additional information by the deadline established above, the Administrator would disapprove the request. If the facility provided additional information by the deadline, the Administrator would notify the facility of approval or disapproval within 45 days after receiving the information. (Performance Track member facilities would be notified within 30 days.) However, failure by the Administrator to meet this deadline would not constitute approval of the request.

If the Administrator finds that the facility meets the requirements under Option 1, he or she would approve the facility's request to no longer be subject to the subpart. However, the Administrator could condition approval on additional compliance measures as deemed necessary. The Administrator would transmit written approval to the facility that includes the following components:

• Identification of the subpart that no longer applies.

• Identification of the sources of emissions to which the subpart would otherwise apply.

• Any additional compliance measures deemed necessary.

• A requirement that the facility provide written notice to the Administrator at least 30 days prior to beginning to emit HAP from the designated sources of emissions.

• A condition that the applicable requirements of the subpart will again apply to the designated sources of emissions on the date that the facility begins to emit HAP from the sources of emissions, and that the facility must comply with the requirements of the subpart on that date. This written approval would serve as an enforceable agreement between the enforcing agency and the facility.

We believe that 45 days is a reasonable period for the Administrator to review a request and determine whether it should be approved or denied. We also believe that a reduced period of 30 days is a reasonable period of time for the Administrator to review a request from a Performance Track member facility and determine whether it should be approved or denied, particularly with the support of a designated central contact within EPA to facilitate and expedite the Performance Track request. Performance Track member facilities would be accorded a shorter review period in recognition of their top environmental performance, because of EPA's increased familiarity with operations at these member facilities, and to provide an incentive to promote increased participation in the Performance Track program. However, we have proposed that a failure to meet this deadline should not be deemed approval because we believe that an action of this importance should not go into effect without affirmative approval.

After a facility's request has been approved, the facility would be required to keep the commitments it agreed to during the request/approval process. These include the commitment not to emit HAP from the affected sources of emissions without giving at least 30 days prior notice and the requirement to carry out any additional compliance measures upon which the approval was conditioned.

In addition, we believe that the facility should keep records sufficient to show that it is meeting its commitments. Nevertheless, we have not proposed that the facility must accept specified monitoring, recordkeeping, and reporting requirements for this purpose. We believe that the situation after an approval is analogous to that of any other facility in a source category for which a NESHAP subpart is promulgated. These facilities would be required to determine whether they are subject to the subpart, and, if not, they would be required to produce documentation to satisfy the Administrator that they are not subject when asked to do so. If a facility incorrectly asserted that it was not subject to the subpart, it would be subject to an enforcement action for failing to meet the requirements of the subpart.

This being said, we also acknowledge that all facilities are unique. We are proposing that the Administrator may condition approval on additional compliance measures, and these may include monitoring, recordkeeping, and/or reporting as warranted by individual circumstances. However, we do not think the level required for demonstrating continuous compliance under a NESHAP subpart is likely to be appropriate here.

If a facility resumes HAP emissions from the affected operations, the NESHAP subpart would apply to the facility immediately, and the facility would be required to comply with the subpart immediately upon emitting HAP. This would be a condition of approval, and the facility must agree to it during the request/approval process. If the facility fails to give 30 days notice of its intent to emit HAP from the affected operations and/or fails to comply with the subpart upon emitting HAP, it could be subject to an enforcement action.

If the facility has no reason to be subject to CAA title V permitting requirements after approval of a request under Option 1, it could apply to its permitting authority to rescind the permit. This would be the case if the only reason that a facility was required to have a title V permit was the fact that it was subject to the NESHAP subpart that no longer applies after the approval.

If the facility continued to be subject to title V for other reasons, such as major status for HAP or other pollutants, the “applicable requirements” that come out of the request/approval process would be added to the title V permit. These would include the requirement not to emit HAP from the affected operations without 30 days notice; the stipulation that the NESHAP subpart applies, and that the facility must comply immediately upon emitting HAP; and any additional compliance measures imposed as a condition of approval. Similarly, the requirements of the subpart itself would be removed from the title V permit.

From the perspective of part 63, the facility would no longer be subject to the subpart upon receiving written approval of its request from the Administrator. We believe that the facility should generally be able to implement the approved change in status immediately, with any process needed to revise the title V permit taking place afterwards.

We are proposing to add § 63.18 to the General Provisions to address facilities that are subject to a NESHAP subpart on the first applicable compliance date, and have subsequently implemented P2 measures to achieve and maintain HAP emissions reductions equivalent to or better than the MACT level of control for some or all of the regulated sources of emissions. Under the proposed Option 2, such facilities could submit a request to the Administrator for P2 alternative compliance requirements.

If the request is approved, the alternative compliance requirements would replace requirements specified in the subpart. The P2 alternative compliance requirements would remain in force as long as the facility continues to use the P2 measures and maintains the HAP emissions reductions described in the approved request.

A facility would be eligible for Option 2 if the following two conditions are met for a particular NESHAP subpart:

• The facility was subject to the subpart on the first compliance date that applied to the facility under the subpart.

• The facility has implemented P2 measures to reduce HAP emissions to at least the level required under the subpart for one or more of the regulated sources of emissions, and continues to maintain those reductions.

The first condition is the same as presented above in Option 1 for facilities that eliminate regulated HAP emissions entirely. The second condition would require the facility to use P2 to reduce HAP emissions, to at least the level of the subpart requirements, for at least one source of emissions that is subject to an emission limitation under the subpart. Option 2 differs from Option 1 in that this condition would not require the facility either to completely eliminate HAP emissions or to apply P2 across all the sources of emissions regulated under the subpart. Instead, the facility could apply for P2 alternative compliance requirements for any regulated sources of emissions on which it has implemented P2 and achieved or exceeded the HAP emissions reductions required under the subpart.

A facility could submit a written request to the Administrator for P2 alternative compliance requirements at any time after the subpart's first applicable compliance date. As defined in § 63.2 of the General Provisions, “Administrator” means the EPA Administrator or his or her authorized representative, such as a State that has been delegated the authority to implement the provisions of part 63. For Performance Track member facilities, the Administrator would designate a central contact within the EPA to facilitate and expedite the review of such requests for P2 alternative requirements. Owners and operators of Performance Track member facilities would be encouraged to submit their requests to the designated Performance Track contact within EPA in addition to the EPA Administrator.

The request may include any information that the facility considers useful to demonstrate that alternative compliance requirements are justified. At a minimum, the proposed rule would require that the written request include these nine items:

• A statement identifying the NESHAP subpart and the operations that are subject to the subpart, and indicating that the facility is applying for P2 alternative compliance requirements.

• A description of each source of emissions for which the facility is requesting P2 alternative compliance requirements.

• A description of the P2 measures used to reduce HAP emissions, and a demonstration that the measures qualify as P2 as defined in § 63.2. (This definition is proposed to be added as part of this rulemaking; see section III.A of this document.)

• A demonstration that the P2 measures have reduced HAP emissions from each source of emissions for which alternative compliance requirements are being requested to at least the level that is required by the subpart.

• Proposed specific P2 alternative compliance requirements for the designated sources of emissions which ensure that the commitment both to continue using the P2 measures and to maintain the described HAP emissions reductions is enforceable as a practical matter, along with a demonstration that the proposed alternative requirements will effectively assure continuous compliance with the commitment.

• A citation of each applicable requirement in the subpart and General Provisions that the facility proposes to replace with the P2 alternative compliance requirements, accompanied by an explanation of how the proposed alternative requirements satisfy the intent of the replaced requirements and/or why the replaced requirements are not necessary.

• A certification (signed by a responsible official) that the facility will not discontinue the P2 measures or fail to maintain the HAP emissions reductions described in the request without notifying the Administrator in writing at least 30 days prior to doing so.

• A certification (signed by a responsible official) agreeing that, upon discontinuing the P2 measures and/or failing to maintain the HAP emissions reductions described in the request, the subpart again applies and the facility must comply immediately with all of the requirements of the subpart.

• A certification (signed by a responsible official) that the facility is subject to all applicable requirements of the subpart not proposed to be replaced by P2 alternative compliance requirements.

The first four required items would simply identify the NESHAP subpart and the affected equipment, indicate that the facility wishes to use this provision to obtain P2 alternative compliance requirements, and demonstrate that the facility meets the eligibility requirements. For the fifth and sixth items, the facility would propose and justify the alternative compliance requirements and identify the requirements in the subpart that the alternative requirements would replace. The seventh and eighth items certify that the facility acknowledges it would be required to continue the approved alternative P2 measures, and understands the consequences for failing to do so. The ninth item certifies that the facility will continue to comply with those portions of the subpart that were not replaced by approved alternative P2 measures.

Under Option 2, approved P2 alternative compliance requirements would actually replace the compliance requirements in the NESHAP subpart and become the facility's applicable requirements under part 63 for the subpart. However, unlike Option 1, the facility would remain subject to the subpart. Thus, the facility would be required to continue to meet all requirements of the subpart for any regulated sources of emissions not included in the request, and it would remain subject to title V permitting requirements.

To provide certainty to both the facility and the enforcement agency as to exactly what requirements apply to each regulated source of emissions, the proposed rule would require that the facility's request clearly tie the proposed P2 alternative compliance requirements to the designated sources of emissions. Where appropriate, the facility could propose different alternative requirements for different sources of emissions, as long as applicability is clear. In addition, the facility would be required to specify exactly which requirements of the subpart and General Provisions would be replaced by the proposed P2 alternative compliance requirements, and for which sources of emissions.

For its P2 alternative compliance requirements, the facility would be required to propose measures that assure compliance with its commitments both to continue using the P2 measures and to maintain the HAP emissions reductions described in the request. Because the facility would remain subject to the subpart, the alternative requirements would be sufficient to demonstrate continuous compliance.

To demonstrate and assure continuous compliance, we expect that the P2 alternative compliance requirements will include monitoring, recordkeeping, and reporting requirements. In this context, we mean “monitoring” in a broad sense, which could involve simply tracking the purchases and composition of the materials used in the operations covered by the alternative requirements. Depending on the situation, appropriate monitoring may involve more rigorous measures, up to and including continuous instrumental monitoring of process or control device operating parameters or of the exhaust stream. In general, the monitoring program should gather relevant data with sufficient frequency and accuracy to form a conclusive basis for assessing whether the facility maintained continuous compliance with its commitments for P2 and HAP emissions reductions. The monitoring program should include appropriate quality assurance and quality control procedures to ensure the continued reliability of monitoring data.

Similarly, the facility would be required to propose recordkeeping requirements sufficient to document conclusively whether the facility maintained continuous compliance. One existing recordkeeping requirement in the General Provisions that we believe generally should not be replaced by alternative requirements is § 63.10(b)(1), which governs availability and retention of records. The facility's proposed reporting requirements would include periodic reporting to disclose periods of noncompliance or to confirm continuous compliance, as applicable, for each reporting period. Reports also should address the performance of the facility's monitoring program. We expect that alternative reporting requirements typically will conform to the schedule of the existing requirements for the sources of emissions not covered by the P2 alternative compliance requirements, and that the facility would submit combined reports for all of the sources of emissions subject to the subpart.

The facility should not overlook startup, shutdown, and malfunction (SSM) requirements in its request for P2 alternative compliance requirements. It may need to revise its SSM plan, and may want to propose alternative SSM recordkeeping or reporting requirements to match its P2 measures.

The mechanics of the review process under Option 2 would be identical to the process under Option 1. A facility that submits a request under Option 2 would remain subject to all the applicable requirements of the NESHAP subpart in question until the Administrator notifies it in writing that the request for P2 alternative compliance requirements has been approved. When the Administrator receives a request under Option 2, he or she would notify the facility in writing of approval or intent to deny approval within 45 days after receiving the original request. (Performance Track member facilities would be notified within 30 days.) However, failure by the Administrator to meet this deadline would not constitute approval of the request.

If the Administrator intends to disapprove the request, he or she would include the following three items in the written notification:

• Notice of the information and findings on which the intended disapproval is based.

• Notice of the opportunity for the facility to present additional information before final action on the request.

• A deadline for the facility to present the additional information.

If the facility failed to provide additional information by the deadline established above, the Administrator would deny the request. If the facility provided additional information by the deadline, the Administrator would notify the facility of approval or disapproval within 45 days after receiving the information. (Performance Track member facilities would be notified within 30 days.) However, failure by the Administrator to meet this deadline would not constitute approval of the request.

If the Administrator found that the facility meets the requirements under Option 2, he or she would approve the facility's request for P2 alternative compliance requirements. However, the Administrator could condition approval on additional compliance measures as deemed necessary. The Administrator would transmit written approval to the facility that would include the following components:

• Identification of the specific regulated sources of emissions covered by the approval.

• The P2 alternative compliance requirements that apply, including any additional compliance measures deemed necessary. (If necessary, the alternative requirements that apply to different sources of emissions would be clearly specified.)

• The applicable requirements of the subpart that no longer apply to the designated sources of emissions. (Again, requirements would be differentiated by source of emissions, if necessary.)

• A requirement that the facility provide written notice to the Administrator at least 30 days prior to discontinuing the P2 measures and/or failing to maintain the HAP reductions described in the request.

• A condition that the applicable requirements of the subpart will again apply to the designated source(s) of emissions on the date that the facility discontinues the P2 measures and/or fails to maintain the HAP reductions described in the request, and that the facility must comply on that date. This written approval would serve as an enforceable agreement between the enforcing agency and the facility.

As noted previously, we believe that 45 days is a reasonable period for the Administrator to review a request and determine whether it should be approved or denied. We also believe that a reduced period of 30 days is a reasonable period of time for the Administrator to review a request from a Performance Track member facility and determine whether it should be approved or denied, particularly with the support of a designated central contact within EPA to facilitate and expedite the Performance Track request. Performance Track member facilities would be accorded a shorter review period in recognition of their top environmental performance, because of EPA's increased familiarity with operations at these member facilities, and to provide an incentive to promote increased participation in the Performance Track program. However, we are proposing that a failure to meet this deadline should not be deemed approval because an action of this importance should not go into effect without affirmative approval.

In implementing Option 2, the Administrator will remain cognizant of the fact that the purpose of these provisions is to provide an incentive for facilities to develop and implement P2 measures. At the same time, the reviewing agency must ensure that HAP emissions will be reduced to at least the level of MACT, and that the P2 alternative compliance requirements will assure compliance with the facility's commitments in a practically enforceable way. Option 2 is not intended to be a mechanism for obtaining an exemption from necessary compliance requirements.

As a first step, a facility would submit a clear and complete request for P2 alternative compliance requirements. At a minimum, the request would include the nine components previously listed. The facility would be free to submit any additional information that it believes will help justify the alternative requirements.

The facility and the reviewing agency must have a common understanding of the sources of emissions designated for P2 alternative compliance requirements, the proposed alternative requirements ( i.e. , the actions that the facility would be required to carry out), and the provisions of the NESHAP subpart and General Provisions that would no longer apply. In addition, three unambiguous certifications, signed by a responsible official of the facility (as defined in § 63.2 of the General Provisions) would be included in the request. The reviewing agency would not grant a request until these aspects are clearly and completely specified in writing.

A key component of the request would be a clear and comprehensive description of the P2 measures that the facility has implemented and a demonstration that these measures meet the definition of “pollution prevention” in the proposed amendments. As detailed earlier (in Section III A.), “pollution prevention” means “source reduction” as defined in the Pollution Prevention Act.

Another key component of the request would be a demonstration that the P2 measures have achieved, and will maintain, HAP emissions reductions equivalent to or better than the MACT level of control. Because of the uniqueness of each situation, the facility should describe operations before and after implementation of the P2 measures so as to demonstrate that the P2 measures obtain equivalent (or better) results. Facilities have detailed knowledge of their operations and, as such, are in the best position to determine how to make this demonstration.

We will encourage State, local, and tribal agencies that receive requests for P2 alternative compliance requirements to collaborate with the EPA Regional Offices and Headquarters in reviewing these requests. In this manner, we expect to build a common awareness of the issues that arise as a basis for forging a common approach to review and approval.

We invite comment on this approach to demonstrating that P2 measures reduce HAP emissions to at least the level required by the NESHAP subpart. Commenters who believe that we should provide more specific criteria or guidance on this demonstration should provide specific suggestions on appropriate criteria/guidance.

In addition to proposing clear P2 alternative compliance requirements, the proposed rule would require that the request include a commitment from the facility to continue using the P2 measures and to maintain the described HAP emissions reductions. To be approved, the alternative requirements must be adequate to demonstrate and document continuous compliance.

For example, if a process has been modified to make it inherently less polluting and incapable of emitting HAP at or near the level of the MACT emission limit, the alternative compliance requirements might consist of documenting and periodically certifying that the process continues to be operated as described in the request. If the P2 measures consist of switching raw materials to reduce HAP emissions, tracking raw material purchases and HAP content may be adequate to demonstrate continuous compliance.

The margin of compliance achieved through the P2 measures can be an important consideration in developing proposed alternative requirements. When HAP emissions are at or near the emission limit, greater accuracy would typically be desired than when emissions are well below allowable levels and the likelihood of exceeding the limit is low. Many existing regulations and policies are based on this principle. For example, the General Provisions already provide a mechanism whereby a facility with a continuous emission monitoring system may apply for a less-rigorous alternative to the relative accuracy test when its emission rate is less than 50 percent of the applicable emission limit. ( See § 63.8(f)(6).)

Many subparts include emission limits and/or compliance options based on P2. For such subparts, we do not believe that simply meeting these limits automatically entitles a facility to P2 alternative compliance requirements, since the requirements are based on the use of P2. In general, we believe that the existing requirements are appropriate in such cases; however, there may be situations where an alternative requirement is equally appropriate. For example, the reviewing agency may wish to consider approving alternative compliance requirements where a facility's P2 measures have reduced HAP emissions to well below the emission limit ( i.e. , where the margin of compliance is large). The margin of compliance is relevant because we have typically developed compliance requirements based on what is needed to assure continuous compliance when a facility operates at or near the emission limit. In addition, a facility that has introduced P2 measures that were not considered during development of the applicable subpart's compliance requirements is a prime candidate for P2 alternative compliance requirements.

After a facility's request has been approved under Option 2, the facility would keep the commitments it agreed to during the request/approval process. This includes the commitment to neither discontinue the P2 measures, nor fail to maintain the HAP emissions reductions described in the request without giving at least 30 days prior notice. It also includes the commitment to comply with the NESHAP subpart for all sources of emissions not designated in the request and approval, and the commitment to carry out the approved P2 alternative compliance requirements (including any added by the Administrator as a condition of approval).

After approval, the P2 alternative compliance requirements would replace the identified portions of the NESHAP subpart and General Provisions for the designated sources of emissions. They would become the enforceable requirements for the facility under 40 CFR part 63 for the subpart.

Note that the facility would be required to maintain the HAP emissions reductions described in its request and approved by the Administrator, even if this requirement is more stringent than the subpart's emission limit. This would be a condition of approval, and the facility would be required to agree to it during the request/approval process. Because the facility's margin of compliance with the MACT emission limits may have been an important consideration in development and approval of its P2 alternative compliance requirements, it is important that the compliance margin be maintained. Alternative compliance requirements approved based on a large margin of compliance may not be adequate to demonstrate continuous compliance during times when the facility operates closer to the emission limit in the subpart. Thus, facilities should be aware that they will be held to the HAP reductions described in their requests. If necessary, they may want to build in some flexibility by claiming less HAP reductions than they are able to obtain with the P2 measures under optimum current operating conditions.

If a facility discontinued the P2 measures and/or failed to maintain the HAP emissions reductions described in the approved request without giving at least 30 days prior notice, it may be subject to an enforcement action for violating the commitments it agreed to as a condition of approval. In addition, all portions of the NESHAP subpart would apply to the facility immediately, and the facility would be required to comply with the subpart immediately upon discontinuing the P2 measures and/or failing to maintain the HAP reductions described in the approved request, whether or not the facility gave the required prior notice. The facility may be subject to an enforcement action if it does not comply with all portions of the NESHAP subpart immediately.

A facility operating under approved P2 alternative compliance requirements could submit a request, at any time, to modify the alternative requirements. The request may involve changes to any combination of the approved P2 measures, levels of HAP reductions, and alternative compliance requirements.

A request for a modification would include, at a minimum, the same information required for an initial request for P2 alternative compliance requirements. The facility may include any additional information that it believes will help demonstrate that modifications are justified.

The Administrator would review the request and approve or disapprove it according to the procedures for an initial request. The facility would remain subject to the existing P2 alternative compliance requirements and all associated commitments until it received written approval of the requested modifications.

A facility that receives approval of P2 alternative compliance requirements would remain subject to the NESHAP subpart. As a result, the facility also would remain subject to title V permitting requirements.

The “applicable requirements” that come out of the request/approval process would be added to the title V permit. These would include the following:

• The approved P2 alternative compliance requirements (including any requirements added by the Administrator as a condition of approval), with associated sources of emissions.

• Citations for the subpart and General Provisions requirements that have been replaced by the P2 alternative compliance requirements, with associated sources of emissions.

• A requirement to give at least 30 days notice prior to discontinuing the P2 measures and/or failing to maintain the HAP emissions reductions described in the request.

• A stipulation that all portions of the subpart apply, and the facility must comply immediately upon discontinuing the P2 measures and/or failing to maintain the HAP emissions reductions described in the request.

Similarly, any requirements in the subpart which no longer apply to the facility would be removed from the title V permit. From the perspective of 40 CFR part 63, the facility would be subject to the P2 alternative compliance requirements (and not to the replaced NESHAP subpart and General Provisions requirements) upon receiving written approval of its request from the Administrator. As noted previously, we believe that the facility should generally be able to implement the approved change in status immediately, with the needed title V permit revisions taking place afterwards.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that these proposed amendments are not a “significant regulatory action” under the terms of Executive Order 12866 and are therefore not subject to OMB review.

The information collection requirements in the proposed amendments have been submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An information collection request (ICR) document has been prepared by EPA (ICR No. 2099.01), and a copy may be obtained from Susan Auby by mail at U.S. EPA, Office of Environmental Information, Collection Strategies Division (2822T), 1200 Pennsylvania Avenue, Washington, DC 20460, by e- mail at auby.susan@epa.gov, or by calling (202) 566-1672. A copy may also be downloaded off the Internet at http://www.epa.gov/icr. The information requirements are not effective until OMB approves them.

The information requirements are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to NESHAP. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to Agency policies in 40 CFR part 2, subpart B.

The proposed amendments would require that owners or operators who wish to apply for P2 compliance alternatives to submit a written request that provides all information needed to document the P2 measures that have been implemented and the alternative compliance provisions that are requested. Upon approval of the request, the owner or operator would be required to implement any alternative monitoring, reporting, and recordkeeping requirements associated with the P2 compliance alternative. Participation in the program of P2 compliance alternatives is voluntary. Only facilities that qualify for a reduced burden associated with monitoring, reporting, and recordkeeping are expected to participate.

The annual public reporting and recordkeeping burden for this collection of information (averaged over the first 3 years after the effective date of the final rule) is estimated to reduce the burden associated with existing MACT standards by 82,160 labor hours per year at a total annual cost reduction of $4.7 million. The average burden reduction per facility is 137 hours per year. This estimate includes savings for facilities that completely eliminate all HAP emissions and qualify for an exemption from the applicable standards. The estimate also includes savings from reduced monitoring, reporting, and recordkeeping for facilities that implement P2 measures for specific emission points that reduce HAP emissions to, or below, the level required by the applicable standards. There are no capital or startup costs associated with the proposed amendments.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information; processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

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. The OMB control number for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

Comments are requested on EPA's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques. Send comments on the ICR to the Director, Collection Strategies Division (2822), U.S. EPA (2136), 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, marked “Attention: Desk Officer for EPA.” Include the ICR number in any correspondence. Because OMB is required to make a decision concerning the ICR between 30 and 60 days after May 15, 2003, a comment to OMB is best assured of having its full effect if OMB receives it by June 16, 2003. The final rule will respond to any OMB or public comments on the information collection requirements contained in the proposed amendments.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any proposed rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies 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 governmental jurisdictions.

For purposes of assessing the impacts of the proposed amendments on small entities, small entity is defined as: (1) A small business as defined in each applicable subpart; (2) a government jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and that is not dominant in its field.

After considering the economic impacts of the proposed amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analysis is to identify and address regulatory alternatives which minimize any significant economic impact on a substantial number of small entities (5 U.S.C. 603-604). Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

Small entities that are subject to MACT standards would not be required to take any action under this proposal; P2 alternative compliance requirements are strictly voluntary. In addition, we expect that any sources implementing P2 compliance alternatives will experience cost savings that will outweigh the cost of requesting the alternative requirements.

The only mandatory cost that would be incurred by air pollution control agencies would be the cost of reviewing sources' requests for P2 compliance alternatives. No small governmental jurisdictions operate their own air pollution control agencies, so none would be required to incur costs under the proposal. In addition, any costs associated with these reviews are expected to be offset by reduced agency oversight obligations for sources with approved P2 alternative compliance requirements.

Based on the considerations above, we have concluded that the proposed amendments will relieve regulatory burden for all affected small entities. Nevertheless, we continue to be interested in the potential impacts of the proposed amendments on small entities and welcome comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that these proposed amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. Sources subject to MACT standards would not be required to take any action under this proposal, including sources owned or operated by State, local, or tribal governments; P2 alternative compliance requirements are strictly voluntary. In addition, P2 compliance alternatives are expected to result in reduced burden on any source that obtains approval of such alternative requirements. Under the proposed amendments, a State, local, or tribal air pollution control agency to which we have delegated section 112 authority would be required to review any requests for P2 compliance alternatives submitted by sources in its jurisdiction. However, such requests are not expected to be plentiful and will not approach the $100 million annual threshold. In addition, any costs associated with these reviews are expected to be offset by reduced agency oversight obligations for sources with approved P2 alternative compliance requirements. Thus, the proposed amendments are not subject to the requirements of sections 202 and 205 of UMRA. EPA has determined that the proposed amendments contain no regulatory requirements that might significantly or uniquely affect small governments because they contain no requirements that apply to such governments or impose obligations upon them. Thus, the proposed amendments are not subject to the requirements of section 203 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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.”

These proposed amendments do not have federalism implications. They 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. Although the proposed amendments would require State air pollution control agencies which have voluntarily taken delegation of the part 63 program to conduct case-by-case reviews where sources elect to apply for P2 alternative compliance requirements, the burden on States will not be substantial. In addition, we expect that the overall effect of the proposed amendments will be to reduce the burden on State agencies as their oversight obligations become less demanding for sources with approved P2 alternative compliance requirements. Thus, Executive Order 13132 does not apply to these proposed amendments. Although section 6 of Executive Order 13132 does not apply to the proposed amendments, we consulted extensively with State and local air pollution control officials during the development of this proposal.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on these proposed amendments from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”

These proposed amendments do not have tribal implications, as specified in Executive Order 13175. They will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Any tribal government that owns or operates a source subject to MACT standards would not be required to take any action under this proposal; P2 alternative compliance requirements are strictly voluntary. In addition, P2 compliance alternatives are expected to result in reduced burden on any source that obtains such alternative requirements. Under the proposed amendments, a tribal government with an air pollution control agency to which we have delegated section 112 authority would be required to review any requests for P2 compliance alternatives submitted by sources in its jurisdiction. However, such requests are not expected to be plentiful, so the effects will not be substantial. In addition, any costs associated with these reviews are expected to be offset by reduced agency oversight obligations for sources with approved P2 alternative compliance requirements. Thus, Executive Order 13175 does not apply to these proposed amendments.

However, in the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and Indian tribes, EPA specifically solicits comment on the proposed amendments from tribal officials.

Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. These proposed amendments are not subject to Executive Order 13045 because all MACT standards governed by the General Provisions are based on technology performance and not on health or safety risks. Furthermore, the proposed amendments have been determined not to be “economically significant” as defined under Executive Order 12866.

The proposed amendments are not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because they are not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law 104-113,12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

These proposed amendments do not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the proposed amendments, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in the proposed amendments.

For the reasons cited in the preamble, part 63, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

A. Background

Section 811 of the National Defense Authorization Act for Fiscal Year 2002 (Pub. L. 107-107) added 10 U.S.C. 2410n, providing that (1) before purchasing a product listed in the FPI catalog, DoD must conduct market research to determine whether the FPI product is comparable in price, quality, and time of delivery to products available from the private sector; (2) if the FPI product is not comparable in price, quality, and time of delivery, DoD must use competitive procedures to acquire the product; and (3) in conducting such a competition, DoD must consider a timely offer from FPI for award in accordance with the specifications and evaluation factors in the solicitation.

On April 26, 2002, DoD published an interim rule at 67 FR 20687 to implement Section 811 of Public Law 107-107. In addition, DoD conducted a public meeting on June 2, 2002, to hear the views of interested parties. Approximately 60 persons attended the public meeting, and 43 sources submitted written comments in response to the interim rule.

On December 2, 2002, Section 819 of the National Defense Authorization Act for Fiscal Year 2003 (Public Law 107-314) amended 10 U.S.C. 2410n to (1) clarify requirements for conducting market research before purchasing a product listed in the FPI catalog; (2) specify requirements for use of competitive procedures or for making a purchase under a multiple award contract if an FPI product is found to be noncomparable to products available from the private sector; (3) specify that a contracting officer's determination, regarding the comparability of an FPI product to products available from the private sector, is not subject to the arbitration provisions of 18 U.S.C. 4124(b); (4) specify that a DoD contractor may not be required to use FPI as a subcontractor; and (5) prohibit the award of a contract to FPI that would allow an inmate worker access to classified or sensitive information.

This proposed rule further implements the requirements of Section 811 of Public Law 107-107 and implements Section 819 of Public Law 107-314. DoD considered comments received in response to the interim rule published on April 26, 2002, in developing this proposed rule. A discussion of the comments, grouped by subject area, is provided below:

Comment: DoD should provide guidance on the role of FPI participation in small business set-aside competitions. Some respondents want DoD to restrict FPI participation to those acquisitions that have not been set aside for competition among small businesses. Those respondents indicate that, prior to the issuance of the first interim rule, FPI had been defined as an “other than small” business and, therefore, is not eligible to compete for small business set-aside awards. Other respondents commented that FPI participation in small business set-asides will have a positive effect on FPI.

DoD Response: Section 811 of Public Law 107-107 was silent on FPI's relationship to small business set-asides. However, Section 819 of Public Law 107-314 added a definition of “competitive procedures” as it applies to 10 U.S.C. 2410n. This definition is the one at 10 U.S.C. 2302(2), which includes, in subsection (2)(D), “procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) * * *” Therefore, this proposed rule adds text at 208.601-70, 208.602(a)(iv)(B), subpart 219.5, and Part 252 to provide for the inclusion of FPI in procurements conducted using small business set-aside procedures.

Comment: The Initial Regulatory Flexibility Analysis is correct in stating that the rule will have a positive effect on small business concerns, because the rule permits small businesses to participate in procurements for supplies that were previously allocated to FPI on a priority basis.

DoD Response: DoD expects this rule to have a positive impact on small businesses. If an FPI product is determined to be noncomparable, small businesses will have the opportunity to compete. The rule further provides small businesses an opportunity to compete with FPI as their sole competitor.

Comment: DoD should exempt micro-purchases ($2,500 and under) from the requirements of the rule. The procedures of the rule are far too burdensome for micro-purchases.

Comment: The requirements of Section 811 and FPI's statute apply regardless of whether the purchase is below the micro-purchase threshold.

DoD Response: 10 U.S.C. 2410n does not authorize DoD to provide an exemption for micro-purchases. However, FPI's Board of Directors recently adopted a resolution exempting purchases at or below $2,500 from FPI clearance requirements. This change is being processed under a separate FAR case. When the FAR is amended to reflect this exemption, the text at DFARS 208.606(1) will become obsolete and will be removed. Therefore, this proposed rule excludes the text at DFARS 208.606(1).

Comment: DoD should provide examples of “competitive procedures.”

DoD Response: Section 819 of Public Law 107-314 added a definition of “competitive procedures” as it applies to 10 U.S.C. 2410n. The definition in the proposed rule at 208.601-70 reflects the statutory definition, and also includes competition conducted using simplified acquisition procedures in accordance with FAR Part 13.

Comment: It is questionable whether the use of GSA multiple award schedules constitutes “competitive procedures” as contemplated in Section 811. Confusion arises because orders on GSA schedules do not require issuance of a solicitation or establishment of evaluation factors.

DoD Response: Section 811 of Public Law 107-107 was silent on FPI's relationship to the GSA multiple award schedule program. However, the definition of “competitive procedures” added by Section 819 of Public Law 107-314 includes “the procedures established by the Administrator of General Services for the multiple award schedule program * * *” (10 U.S.C. 2302(2)(C)). The definition of “competitive procedures” in the proposed rule at 208.601-70 includes the use of GSA multiple award schedules (as one of the procedures in FAR 6.102). The proposed rule provides further clarification, at 208.602(a)(iv)(C), regarding competitive procedures involving multiple award schedules.

Comment: Contracting officers should be authorized to acquire the product off the Federal Supply Schedule, eliminating further competition if Federal Supply Schedule published prices are lower than FPI catalog prices.

DoD Response: Do not concur. This would violate 10 U.S.C. 2410n, which requires market research to determine if the FPI product is comparable. If the FPI product is determined to be noncomparable, competitive procedures must be used to acquire the product.

Comment: The meaning of “comparable price, quality, and time of delivery” is questionable with respect to FPI products compared to private sector competition. Recognizing that it may not be feasible to produce a single general methodology that applies to every product, the rule should require disclosure of specific guidelines and the methodology used. Several respondents believed it was clear from both the statute and the interim rule that, to be found comparable to a product from the private sector, the FPI product must meet all three criteria of price, quality, and time of delivery. The inability to meet any one of the criteria should result in an automatic failure to find FPI comparable. Several other respondents stated exactly the opposite, i.e. , that for the FPI product to be considered comparable, it need only be comparable in one of the three areas. Several respondents requested that the final rule contain procedures for making the noncomparability determination.

DoD Response: Section 819(b) of Public Law 107-314 clarifies that DoD may determine an FPI product to be noncomparable based on price, quality, or time of delivery. The proposed rule clarifies this point at 208.602(a)(iv). The comparability determination must be fair, but it is not practicable to set the criteria that will apply to all circumstances. The contracting officer must retain flexibility. The word “comparable” is already used throughout the FAR with its common dictionary meaning (“having sufficient features in common with something else to afford comparison”). To support the comparability determination, a requirement for a written document has been included in the proposed rule at 208.602(a)(ii). This document will include an assessment of the three factors, based on the results of market research that compares FPI products to those available from the private sector.

Comment: Eliminate the requirement to allow FPI to compete if, based on market research, it is determined noncomparable to the private sector. The private sector does not receive two chances, so FPI should not either.

DoD Response: Do not concur. The recommended change does not comply with 10 U.S.C. 2410n, which requires that an offer from FPI be considered if made in a timely fashion.

Comment: Section 811 is not appropriate for build-to-print items (spares) that support older weapons systems. It is more appropriate for commercial-type items, where it is easier to conduct market surveys for comparison purposes. In some cases, the organization uses the Government's depot cost to fabricate, as a basis of comparison. The use of the term “private sector” invalidates that comparison and requires a further comparison before award to FPI.

DoD Response: It appears that 10 U.S.C. 2410n was tailored more for commercial-type items than build-to-print items. However, DoD organizations must comply with its requirements.

Comment: The rule does not address buys of military-unique items, because those items do not have catalog prices. Each requirement is built to customer specification and must be individually quoted. There are no catalogs to consult for pricing and delivery, from either FPI or commercial sources. Section 811 would require following manual procedures, outside of automated procurement systems, and cause additional unnecessary lead time. In these situations, is it permissible to solicit commercial sources and FPI simultaneously and have the competitive offers and subsequent award decision serve as the basis for making the determination of whether the FPI product is comparable?

DoD Response: Although 10 U.S.C. 2410n does not prohibit this method of conducting comparability determinations, the statute clearly establishes an “if-then” situation, i.e. , if the Secretary makes a noncomparability determination, then he uses competitive procedures. Therefore, section 208.602 of the proposed rule addresses the market research and resulting comparability determination as a step separate from the solicitation process, to adhere to the “if-then” approach established in 10 U.S.C. 2410n.

Comment: Does the arbitration panel affect the resolution of protests? In enacting Section 811, Congress was silent regarding the arbitration panel's authority or whether a clearance or waiver from FPI is required if the market research indicates that FPI's products are not comparable to those available from the private sector.

DoD Response: Although Section 811 was silent on this matter, Section 819 of Public Law 107-314 provides that the contracting officer's determination, regarding the comparability of FPI products or services to those available from the private sector that best meet DoD's needs in terms of price, quality, and time of delivery, is not subject to 18 U.S.C. 4124(b). 18 U.S.C. 4124(b) addresses the arbitration board process as it relates to disputes as to price, quality, character, or suitability of FPI products. The proposed rule amends the text at DFARS 208.602(a)(i) to clarify that the arbitration board process does not apply to a contracting officer's comparability determination.

Comment: Will the determination to award to other than FPI be delegated down to the contracting officer level, as opposed to being kept at the department or agency level as stated in 208.602?

DoD Response: The proposed rule amends DFARS 208.602(a) to provide contracting officers the authority to make comparability determinations with regard to FPI products. This amendment is consistent with the language in Section 819(c)(1) of Public Law 107-314.

Comment: It is inappropriate for the rule to state that the comparability determination is “a unilateral decision made solely at the discretion of the department or agency.” This sentence should either be stricken or clarified. The provisions of the rule may conflict with other statutes or lead to possible misapplication of applicable law. DoD should be afforded discretion in making its decision, however, there must be guidance setting forth the criteria so the decisions are not arbitrary or capricious.

DoD Response: Do not concur. The comparability determination is clearly and solely a DoD determination.

Comment: The words “FPI Schedule”, in the first sentence of 208.602(a), should be changed to “FPI Catalog” to conform to the language in Section 811.

DoD Response: Do not concur. The word “Schedule” has been retained to conform to the terminology used in FAR subpart 8.4.

Comment: The validity of a policy memorandum from the Office of the Assistant Secretary of Defense, dated October 1988, that directs use of GSA schedules as a “quick and efficient” way to obtain furniture for DoD activities is questionable.

DoD Response: DoD recommends that the respondent not use this memorandum for guidance. The policy has been superceded by 10 U.S.C. 2410n and its implementing regulations.

Comment: Is there a requirement to perform a comparability determination if the need is to be acquired on a sole-source basis?

DoD Response: 10 U.S.C. 2410n does not provide for sole-source purchases. If a product is on the FPI Schedule, the purchaser must follow the DFARS policy implementing 10 U.S.C. 2410n.

Comment: There is concern about mandating the use of FPI products for architect-engineer contracts. The rule should state that “FPI may not be specified as a source, nor shall an FPI product be prescribed or recommended in any design or specification prepared by an architect or engineer under contract to the Government. * * *”

DoD Response: The requirements of 10 U.S.C. 2410n are imposed on the Government, not on the contractor. Section 819 of Public Law 107-314 added text prohibiting DoD from requiring a contractor or potential contractor to use FPI as a subcontractor or supplier. This prohibition is addressed in the proposed rule at 208.670.

Comment: Use of the term “solicitation” means one must proceed with issuing a formal solicitation whenever an agency determines that an FPI product is not comparable.

DoD Response: Do not concur. As defined in FAR 2.101, “solicitation” means any request to submit offers or quotations to the Government. For further clarification, the proposed rule separately addresses the use of multiple award schedules at 208.602(a)(iv)(C).

Comment: The rule should be revised to conform to the text of Section 811 by deleting the phrase “that best meet the Government's needs” at each of the three locations where it appears. This phrase does not meet the intent of the statute.

DoD Response: DoD used the phrase “that best meet the Government's needs” in the interim rule to provide needed guidance in this area. This phrase was included in Section 819 of Public Law 107-314 and, therefore, has been retained in the proposed rule.

Comment: If the FPI item is not comparable, can the Government go directly to JWOD?

DoD Response: No. FPI can still fulfill the requirement, even though it has been determined to be noncomparable.10 U.S.C. 2410n requires DoD to consider a timely offer from FPI under such circumstances.

This rule was subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This rule may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule will permit small entities to compete with FPI for DoD contract awards under certain conditions. An initial regulatory flexibility analysis has been prepared and is summarized as follows: This rule proposes amendments to DoD policy pertaining to the acquisition of products from FPI. The rule implements 10 U.S.C. 2410n. The impact of the rule is unknown at this time. However, the rule could benefit small business concerns that offer products comparable to those listed in the FPI Schedule, by permitting those concerns to compete for DoD contract awards.

A copy of the analysis may be obtained from the point of contact specified herein. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2002-D003.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Therefore, DoD proposes to amend 48 CFR Parts 208, 219, and 252 as follows:

1. The authority citation for 48 CFR Parts 208, 219, and 252 continues to read as follows:

The starter interlock requirement of Federal Motor Vehicle Safety Standard (FMVSS) No. 102 (presently at S3.1.3) states “the engine starter shall be inoperative when the transmission shift lever is in a forward or reverse drive position.” The purpose of this requirement is to prevent injuries and death from the unexpected motion of a vehicle when the driver starts the vehicle with the transmission inadvertently in a forward or reverse gear. Two recently introduced vehicles, the Toyota Prius and the Honda Insight, are powered by hybrid/electric systems (the Toyota Hybrid System (THS) and Honda's Idle-stop Technology (IST)) that permit their gasoline engines to stop and restart automatically while the transmission shift lever is in a drive position.

Each manufacturer requested us to interpret S3.1.3 as it applied to these new vehicles. In interpretation letters to Toyota (November 1, 1999) and Honda (January 17, 2001), we concluded that S3.1.3 would not prohibit either system. In each case we based our interpretations on a finding that the system met S3.1.3's underlying purpose of ensuring that the vehicle will not lurch forward or backward during driver activation of the engine starter because driver activation of the engine starter is inoperative when the transmission shift lever is in a drive position. We also noted that these new systems were more complex than those on vehicles that existed when S3.1.3 was first adopted, and that we planned to conduct rulemaking to update the requirements of FMVSS No. 102. Pending completion of the rulemaking, we stated that we would interpret S3.1.3 as requiring that driver activation of the engine starter must be inoperative when the transmission shift lever is in a forward or reverse drive position.

This notice proposes to amend S3.1.3 to accommodate these new technologies, while preserving the safety purpose of the standard. With respect to vehicles with automatic transmissions, the agency proposes that, after activation of the vehicle's propulsion system by the driver, the engine may stop and restart automatically when the transmission shift lever is in any forward drive gear.

We also propose to permit the engine to start and stop automatically when the transmission shift lever is in Reverse, but only if the vehicle's propulsion system provides, at least, a minimum creep force in Reverse when the engine is stopped, the accelerator is released and the propulsion system is activated. In vehicles whose engines automatically start and stop in Reverse, creep force is a force that must be overcome by driver braking even when the engine is not running. Creep force is significant relative to rearward motion in that it serves to warn drivers of impending rearward motion before the driver fully releases the brake (as does an internal combustion engine (ICE) automatic transmission only vehicle with the engine running).

In ICE automatic transmission only vehicles, creep force is the motive force applied to the vehicle by the idling engine and automatic transmission whenever the transmission shift lever is in a drive position. Creep force occurs in the direction indicated by the automatic transmission shift lever position and provides enough force to cause motion of a vehicle loaded to its Gross Vehicle Weight Rating (GVWR) on a level, paved surface before the service brake pedal is completely released. Although not required by the Federal Motor Vehicle Safety Standards, creep force exists on virtually all vehicles powered by ICE engines and equipped with automatic transmissions.

To measure creep force, we propose a test procedure that will be applicable to any vehicle whose propulsion system provides for automatic stopping and restarting when the transmission is in Reverse.

This rulemaking addresses the starter interlock requirement in S3.1.3 of FMVSS No. 102, which currently states that the engine starter shall be inoperative when the transmission shift lever is in a forward or reverse drive position. The requirement was adopted as part of the original standard in 1968 for the purpose of preventing injuries and death from the unexpected surging of a vehicle forward or rearward in cases where the driver starts the vehicle while its transmission is inadvertently in a forward or reverse drive gear.

The development of the Toyota Hybrid System (THS) used on the Prius introduced a low emission, fuel saving propulsion system that, by design, allows the engine to stop and restart automatically while the transmission shift lever remains in a drive position. The design of the THS satisfies the concern addressed in S3.1.3, that the driver not be able to activate the engine starter when the transmission shift lever is in a forward or reverse drive position; however, the THS design is not in compliance with S3.1.3's literal meaning. Until the development of the THS, it was not necessary for S3.1.3 to differentiate between driver activation and automatic activation of the engine starter as the driver always activated the starter.

In response to a request by Toyota regarding the Prius, NHTSA issued an interpretation letter of November 1, 1999, in which we ruled that S3.1.3 applied to the driver's activation of the engine starter when the transmission shift lever is in a forward or reverse drive position, not to automatic activation of the engine starter. The THS raised no other FMVSS No. 102 issues. From a driver's perspective, the THS/Prius operates like an ICE automatic transmission only vehicle. The engine stopping and restarting mode is in effect in both forward and reverse drive gears, and regardless of whether the gasoline engine or the electric motor is powering the vehicle, the propulsion system provides a creep force that must be opposed by the vehicle brake in order to keep the vehicle stopped when the propulsion system is on, the accelerator is released and the transmission is in gear. Creep force alerts the driver to the vehicle's direction of travel while the driver is in the process of releasing the brake pedal and minimizes the chance that the driver will be surprised due to shifting errors when he depresses the accelerator pedal. Creep force is a characteristic inherent to ICE automatic transmission only vehicles.

Later, Honda introduced the IST on the Insight equipped with a continuously variable transmission (CVT) and requested an interpretation similar to the one that NHTSA provided to Toyota. IST is another hybrid/electric low emission, fuel saving system, which allows the gasoline engine to stop and restart automatically while the transmission shift lever is in a drive position. IST also satisfies FMVSS No. 102, S3.1.3's concern about driver shifting errors during driver activation of the engine starter because it renders driver activation of the engine starter inoperative when the transmission shift lever is in a forward or reverse drive position. However, it is not in agreement with the literal meaning of S3.1.3. IST is similar to Toyota's THS relative to starter interlock, but there are significant differences in other areas of operation. IST does not provide creep force when the engine is stopped, and it is employed only in the forward drive gears. From a driver's perspective, IST does not operate quite like an ICE automatic transmission only vehicle. IST does not shut the engine off in Reverse and therefore creep force is retained in Reverse by means of the idling gasoline engine and automatic transmission. In an interpretation of January 17, 2001, we ruled that IST would be permitted under S3.1.2, citing the Toyota interpretation, but because the Insight does not act like an ICE automatic transmission only vehicle, we stated that the Honda situation raised new issues that would necessitate further rulemaking.

This notice proposes that an exception be added to FMVSS No. 102 to accommodate these new hybrid/electric technologies while preserving the safety purpose of the standard. It proposes that for automatic transmission equipped vehicles, after the driver activates the vehicle's propulsion system, the engine may stop and restart automatically while the transmission shift lever is in any forward drive gear. It also proposes that if the vehicle's propulsion system provides a creep force in Reverse (when the engine is stopped, the accelerator is released, and the propulsion system is on) that has a ratio to gross vehicle weight rating (GVWR) of at least .015, the engine may stop and restart automatically when the transmission shift lever is in Reverse. This amendment permits new technologies that allow the engine to stop and restart automatically with the transmission shift lever in gear, but minimizes the possibility that the vehicle will move in a direction unexpected to the driver upon restart. Automatic engine restarting would be permitted only in forward drive gears so that drivers learn to associate restarting with forward motion. However, automatic engine restarting is allowed for vehicles that provide a rearward creep force in Reverse that must be overcome by driver braking even when the engine is not running. Because such vehicles warn their drivers of impending rearward motion before the driver fully releases the brake (as does an ICE automatic transmission only vehicle with the engine running), restarting in Reverse would also be permitted.

So that the reader fully understands the safety need to conduct this rulemaking, and what NHTSA seeks to accomplish in amending FMVSS No. 102, the following describes how the Toyota Prius and the Honda Insight operate. NHTSA considers these two vehicles as examples of the type of electronic control systems that we can expect more of in the future, and that we propose to amend FMVSS No. 102 to accommodate. NHTSA continues to ensure that FMVSS No. 102 meets the need for safety. Significant differences between the Toyota and the Honda approaches are explained, and the consequences of these differences for this rulemaking are discussed.

As explained further, from the driver's perspective, the THS operates like an ICE automatic transmission only vehicle. The THS, which is currently in use on the Prius, uses both an electric motor and a gasoline engine to provide motive power. The electric motor is the primary source of motive power and is also used to start the engine. The engine is used to provide supplemental motive power and to charge the batteries. Before the driver may start or turn on the vehicle, the transmission shift lever must be in Park. After the vehicle is started or turned on by the driver, the gasoline engine may or may not start. If the engine is within the range of normal operating temperature and battery power is sufficient, the engine will not start, but the electric motor is immediately available to provide motive power and creep force. If battery power is low or the engine is not within normal operating temperature, the gasoline engine will start in order to warm up the engine and/or charge the batteries (to power the electric motor), then it will shut off. During normal vehicle operation, the engine automatically stops when the Engine Control Unit (ECU) determines that the vehicle does not need the engine to provide additional power (motive power and/or electrical power). Also, the engine automatically restarts when the ECU determines that the vehicle needs extra power (motive power and/or electrical power). When the engine is required, it may start when the transmission and the transmission shift lever are in drive positions.

The THS functions in all forward and reverse drive gears. The THS also provides creep force in all forward and reverse drive gears regardless of whether the engine or electric motor is powering the vehicle at the time. Normally, when the batteries are charged, the engine is within normal temperature range and the accelerator is depressed, the vehicle will begin to accelerate by means of power from the electric motor and will move in the direction both selected by the automatic transmission shift lever and, as previously indicated, by creep force. As the demand for acceleration increases beyond the capability of the electric motor and/or as the vehicle batteries require recharging, the same electric motor will start the vehicle engine (while the automatic transmission/transmission shift lever remain in drive positions), to provide additional motive and/or electrical power. When stopping, the electric motor aids in recharging the batteries through regenerative braking.

Idle-stop technology (IST) is currently used on the Insight and more recently on the Civic hybrid electric vehicle (system is identical to the Insight), but in the future it may be used on other Honda and Acura models that are not hybrids. Both hybrid vehicles are powered by a low-horsepower gasoline engine assisted by an electric motor. When the driver manually engages the starter to start the vehicle's engine, the transmission shift lever must be in Park or Neutral. During vehicle operation, the engine is always running except during certain circumstances while the vehicle is stopped. Under normal conditions after the vehicle has been driven with the transmission in a forward drive position at a speed greater than or equal to 15 kph (9.32 mph), when the driver stops the vehicle by depressing the service brake pedal, the gasoline engine will stop and the transmission will automatically shift to Neutral even though the transmission shift lever remains in Drive. When the driver removes his foot from the service brake pedal, hydraulic brake pressure is maintained, the starter automatically engages the vehicle engine and the engine starts up. After the engine starts, the transmission automatically shifts internally from Neutral back to Drive, hydraulic brake fluid pressure is automatically released, and the vehicle may start to move slowly forward due to creep force from the idling engine and automatic transmission. When the accelerator is depressed, the vehicle moves in the direction directed by the transmission shift lever position.

Since IST does not provide creep force when the service brake is applied, there is no indication of the direction of vehicle movement until after the driver's foot has been completely removed from the service brake pedal. After release of the service brake pedal, the service brakes remain fully engaged until the engine is restarted and the transmission automatically shifts into a forward drive position. This automatic chain of events occurs very rapidly after the service brake pedal is released, however, the sequence may or may not be completed by the time the driver depresses the accelerator.

As IST is not in effect in Reverse, the engine does not shut off when the transmission is in Reverse. Therefore, the propulsion system provides creep force as a result of the idling engine and the automatic transmission. In forward gears, when the accelerator is depressed, the engine or the engine assisted by the electric motor accelerates the vehicle. The electric motor is used to assist the gasoline engine when extra motive power is required, and to restart the engine after idle-stop.

The Honda system receives input from numerous sensors throughout the vehicle. The ECU will not allow the engine to stop when the vehicle comes to a stop and the transmission lever is in Reverse, Low or S mode (another low gear); immediately after the engine starts; when the air conditioning is in “Auto Switch” mode; when the engine water temperature, the transmission oil temperature, ambient temperature or energy in the battery are low; when electrical load is high; and during sudden (panic) braking. Also, when the engine is stopped and the transmission shift lever is shifted from Drive to Reverse, Low, or Park, the engine restarts immediately while the service brake pedal is depressed.

In 1979, ZEMCO Inc. asked for an interpretation of S3.1.3 in FMVSS No. 102. ZEMCO wanted to market an add-on fuel savings device that conflicted with S3.1.3. The ZEMCO system could be installed on all vehicles as original or after-market equipment and would automatically control the shutdown and restarting of the vehicle engine in order to conserve fuel at times when the vehicle would be otherwise stopped with the engine running at idle speed. The ZEMCO system did not exhibit creep force when the engine was stopped and was employed in both the forward and reverse gears.

As a result of ZEMCO's request for an interpretation and subsequent petition for rulemaking, NHTSA commenced rulemaking to amend S3.1.3. As part of the rulemaking process, NHTSA tested the operational safety of the ZEMCO system. Several safety concerns surfaced during testing such as the delay in engine restarting, the lack of an automatic shut-off feature for the system when the driver parks the vehicle and leaves without specifically turning off the fuel savings system, the effects on other vehicle functions, vehicle stalling on restart and the avoidance of engine shutdown under certain conditions. These safety concerns resulted in the agency publishing a notice of termination of rulemaking in the Federal Register of March 27, 1984 (49 FR 11692). In the termination notice, NHTSA also encouraged further research and development in the area of fuel economy devices.

The following describes NHTSA's rulemaking proposal to amend FMVSS No. 102 and the four major issues addressed in the rulemaking: first, the significance of reverse drive and the park position; second, the importance of creep force; third, the level of creep force to be specified; and fourth, the safety need for fail-safe provisions for automatic engine stopping and restarting while the transmission and/or transmission shift lever are in gear.

In 1991, Mr. Brett Reed of Morse Controls, Inc. submitted a request for an interpretation of FMVSS No. 102 as it applies to electronic transmission shift controls. Mr. Reed specifically asked about controls that operate automatic transmissions used in heavy trucks and recreational vehicles (RVs) and on solenoid operated power shift transmissions used in various on and off highway vehicles. In his letter, Mr. Reed cited S3.1.3, which requires that the engine starter be inoperative when the transmission shift lever is in a forward or reverse drive position. The main question posed was if the intent of the standard was to render the starter engine inoperative when the transmission shift lever is in a forward or reverse drive position or when the transmission was in a forward or reverse drive gear. Mr. Reed noted that when FMVSS No. 102 was written, transmission levers communicated with transmissions via mechanical linkages and therefore the transmission shift lever always matched the gear position of the transmission.

With the introduction of electronic shift systems and fully electronic controlled transmissions, communication between the transmission shift lever and the transmission is rarely performed by direct mechanical means. This raises the possibility that the transmission shift lever position may not match the gear currently engaged by the transmission in situations where the transmission control circuitry overrides the shift lever selection in the interest of safety, transmission protection or other criteria related to performance and specific applications. The concern was that some systems automatically shift to Neutral within the transmission when the engine is started, however, the transmission shift lever remains in some other position. In these cases, the transmission shift lever position does not coincide with the status of the transmission. Mr. Reed sought an interpretation stating that the intention of S3.1.3 was that the engine starter shall be inoperative when the transmission is in a forward or reverse drive position.

NHTSA's response of September 16, 1991 essentially stated that the transmission shift lever position and the gear position of the transmission must always agree. Since this interpretation in 1991, electronically controlled transmissions have become more prevalent. Today, electronically controlled transmissions are not only on large trucks and recreational vehicles, but are also appearing in the passenger car fleet. In addition, vehicle electronic control systems and control algorithms have become more sophisticated, which allow for more safeguards and fail-safe systems. These systems are capable, on a limited basis, of overriding the driver's input or lack of input to achieve optimal vehicle performance and safety.

The Honda Insight with the continuously variable transmission, which employs idle-stop technology (IST) and which NHTSA permitted in an interpretation letter of January 17, 2001, highlights the decreasing relevance of the shift lever position in certain situations. IST allows the engine to stop, the transmission to briefly shift to Neutral while the engine is automatically restarting, then allows the transmission to shift back to Drive while the transmission shift lever remains in a drive position. During this procedure, however, service brake pressure is maintained even after the driver has released the service brake pedal. This scenario was not disputed in the Honda interpretation even though it was in conflict with the 1991 interpretation letter to Mr. Reed.

NHTSA intends that the Honda interpretation supersede the Reed interpretation to the extent that, from now on, for all vehicles, when the transmission shift lever is in a forward drive position, the transmission gear may be in another forward drive position or Neutral. When the transmission shift lever is in Reverse, the transmission gear must be in reverse gear. Additionally, when the driver has selected the transmission shift lever “Park” position, the transmission must always be in the Park position. This restriction is necessary to ensure that the vehicle does not start moving when the driver does not expect the vehicle to move, and cause the driver to panic. We are proposing an additional provision for vehicles with systems that allow the engine to start and stop automatically after driver activation of the engine starter which states that when the transmission shift lever is in Park, the engine automatic start/stop system shall not take the transmission out of Park.

In ICE automatic transmission only vehicles, creep force is the motive force applied to the vehicle by the idling engine and automatic transmission whenever the transmission shift lever is in a drive position. Creep force occurs in the direction indicated by the automatic transmission shift lever position and provides enough force to cause motion of a vehicle loaded to its Gross Vehicle Weight Rating (GVWR) on a level, paved surface before the service brake pedal is completely released. Although not required by the Federal Motor Vehicle Safety Standards, creep force exists on virtually all vehicles powered by ICEs and equipped with automatic transmissions.

When the current wording of FMVSS No. 102 was adopted in 1968, vehicles were equipped mostly with ICEs and mechanical/hydraulic automatic transmissions, which have always provided creep force. Today, drivers can rely on creep force to avoid crashes that would result from shifting errors. When a driver places the automatic transmission shift lever in a drive position and reduces service brake pressure slowly by easing up on the service brake pedal, the vehicle begins to move slowly in the direction that has been selected by the transmission shift lever. This creep force in the correct direction cues the driver that when the accelerator is depressed, the vehicle will move in the anticipated direction.

It is important for creep force to initiate motion of the vehicle before the driver's foot leaves the service brake pedal and before the service brakes are completely disengaged. Then, if a shifting error has occurred, the driver's foot is still on the brake pedal and the error can be safely and quickly corrected. For example, if there is no creep force associated with an automatic transmission equipped vehicle and the driver thought he had selected Drive but instead had selected Reverse, when he removes his foot from the brake and depresses the accelerator, the vehicle would unexpectedly move rearward instead of forward. The unexpected movement of the vehicle rearward may cause the driver to further depress the accelerator. By the time the driver realizes his mistake and applies the brake again, the vehicle may have moved rearward a considerable distance and possibly struck a pedestrian or an object, causing injury and/or property damage.

From years of driving ICE-powered automatic transmission vehicles, drivers are familiar with cues in the direction of travel indicated by creep force. Since it is not inherent in hybrid vehicles, it is NHTSA's view that there is a safety need to at least design creep force into the vehicles when in Reverse. Toyota designed the Prius in such a way that allows the electric motor to provide creep force so that it would function like an ICE automatic transmission only vehicle. For vehicles like the Prius that provide creep force in Reverse when the engine is stopped, the changes proposed in FMVSS No. 102 would allow the engine to stop and restart automatically when the transmission shift lever is in Reverse as well as in forward gears. The opportunity for shifting errors is always present. Drivers experience creep force constantly as a cue, which assures them of what gear they are in. An engine that is stopping and restarting automatically may add to driver confusion, especially when there is an absence of creep force. This proposed amendment has the effect of assuring rearward creep force in all automatic transmission vehicles with engine stop/start systems, either by requiring that the engine remain running in Reverse for vehicles like the hybrid electric Insight/Civic or by virtue of the design of the electric propulsion system for vehicles like the Prius. When there is no creep force or when there is creep force in the forward direction, the driver will know the vehicle is in a forward drive gear, in Neutral, or Park.

In examining the propulsion systems of the Honda Insight and Civic hybrid electric vehicle with IST and the Toyota Prius with the THS, it was noted that the Honda Insight/Civic hybrid electric vehicle did not provide creep force in the forward direction, as there was no possibility of vehicle motion until the service brake pedal was fully released. The Honda system provides creep force in Reverse because IST does not function in Reverse and the engine remains running, allowing the engine/automatic transmission to provide creep force by means of the ICE and automatic transmission. For the Toyota Prius, the engine stops in either the forward or reverse gears, however, when the gasoline engine is off, creep force is provided by the electric motor.

In order to investigate the level of creep force that drivers are used to, and the level of creep force to require of any vehicle that allows the engine to automatically start and stop in Reverse, NHTSA measured the creep force produced by thirteen vehicles, including passenger cars, multipurpose passenger vehicles, and light trucks, that were selected on the basis of their availability. Measurements were made with the vehicle engines running at idle and the vehicle automatic transmissions in Drive, the lowest ratio forward gear (Low) and Reverse.

A record of the vehicles tested and creep forces measured are in Table 1. The creep force must be high enough to be noticeable to the driver. A heavier vehicle requires greater creep force to produce an obvious cue to the driver. The force data in Table 1 represents the amount of creep force that each vehicle's propulsion system produced. The creep force of some of these vehicles may be in excess of what is necessary to be minimally noticeable to the driver. Since the motion cue to the driver depends mainly on creep force and vehicle weight, NHTSA believes it is appropriate to examine the ratio of creep force (forward and reverse) to vehicle weight (in Table 1, curb weight was used) of the vehicles tested. The results ranged from a minimum value of 0.02 for test number one (rearward creep force) to a maximum value of 0.17 for test number eleven (forward creep force). Since the creep force was obvious to the driver for all of these vehicles, NHTSA selected the lowest creep force to vehicle curb weight ratio, which was .02. Later, for the purpose of consistency, we decided to convert the lowest creep force/curb weight ratio to its corresponding creep force/GVWR ratio, which is .015. For vehicles that allow the engine to stop and start automatically while the transmission shift lever is in Reverse, the reverse creep force designed into a vehicle's propulsion system must be, at minimum, 1.5 percent of the vehicle's Gross Vehicle Weight Rating (GVWR) when the vehicle's engine is stopped, the propulsion system is on, the accelerator is released, the vehicle is loaded to its GVWR and the vehicle is on a level, paved surface.

The agency invites input from industry and the public relative to what this minimum ratio of creep force to vehicle GVWR should be. The agency also requests comments on the test for creep force in S5 of the proposed regulatory text.