We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-1319; Directorate Identifier 2011-NM-143-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received 14 reports of events related to thermal damage of the T/R inner wall on Rolls-Royce RB211 Trent 800 engines. The events have included air turnbacks, in-flight engine shutdowns, T/R inner wall panel sections and parts being separated from the airplane, collapse of the inner T/R inner wall panel, and engine fire loop fault messages.

Boeing issued Alert Service Bulletin 777-78A0059, dated February 24, 2005; and Special Attention Service Bulletin 777-78-0060, dated February 24, 2005; to provide instructions for inspecting the T/R inner wall panel structure and sealing the insulation blankets to prevent hot under-cowl air from contacting the T/R inner wall panel. Since those service bulletins were released, there have been four T/R events on airplanes on which those service bulletins had not been fully accomplished and 10 T/R events on airplanes on which those service bulletins had been accomplished.

There are two separate causes of the thermal degradation. The first cause is the IP8 exhaust washing the outer side of the inner wall. This cause is addressed by this proposed AD through modification of the IP8 bleed system. The second cause is the inadequate thermal protection system. We are considering further rulemaking to address this cause.

This thermal degradation, if not corrected, could result in the T/R being damaged by excessive heat, which could result in thrust reverser structural failure. This failure could result in large pieces of the T/R or adjacent components departing the airplane. A separated T/R piece could result in an RTO and cause asymmetric thrust and consequent loss of control of the airplane during reverse thrust operations. Separated components could also cause structural damage to the airplane, damage to other airplanes, or injury to people on the ground.

We reviewed Boeing Service Bulletin 777-75A0002, Revision 1, dated October 26, 2011. This service information describes procedures for replacing bleed valve parts and tubing (including IP8 bleed valve ducts, duct bases, HP3 air tubes and associated parts) with new parts and tubing on the left and right Rolls-Royce RB211 Trent 800 engines.

Boeing Service Bulletin 777-75A0002, Revision 1, dated October 26, 2011, refers to Boeing Special Attention Service Bulletin 777-31-0177, dated September 23, 2010, as a concurrent requirement. This concurrent service bulletin describes procedures for installing the AEDB software, software part number 3110-BCG-00R-06, media set part number 243W0033-7, in the airplane AIMS hardware.

Additionally, Boeing Service Bulletin 777-75A0002, Revision 1, dated October 26, 2011, refers to Rolls-Royce Service Bulletin RB.211-75-G466, dated June 20, 2011, as an additional source of guidance for replacing bleed valve parts and tubing.

We issued AD 2005-07-24, Amendment 39-14049 (70 FR 18285, April 11, 2005), for Model 777-200 and -300 series airplanes equipped with Rolls-Royce Model RB211 TRENT 800 engines. That AD requires inspecting the thrust reversers for damage of the insulation blankets, the inner wall, and the compression and drag link fittings; and repair if necessary. That AD also requires applying sealant to certain areas of the thrust reverser. That AD refers to Boeing Alert Service Bulletin 777-78A0059, dated February 24, 2005, for doing the required actions. That AD was prompted by two reports of thrust reverser failure; investigation revealed that the inner wall of the thrust reversers had collapsed from exposure to hot engine core compartment air. We issued that AD to prevent failure of a thrust reverser and adjacent components and their consequent separation from the airplane, which could result in an RTO and cause asymmetric thrust and consequent loss of control of the airplane during reverse thrust operation. If an RTO does not occur, these separated components could cause structural damage to the airplane or damage to other airplanes and possible injury to people on the ground.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the Boeing service information described previously.

We estimate that this proposed AD affects 55 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) 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.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-1318; Directorate Identifier 2010-NM-274-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On September 30, 2009, we issued AD 2009-21-06, Amendment 39-16043 (74 FR 53151, October 16, 2009). That AD required actions intended to address an unsafe condition on 328 Support Services GmbH (Type Certificate Previously Held by AvCraft Aerospace GmbH; Fairchild Dornier GmbH; Dornier Luftfahrt GmbH) Model 328-100 and -300 airplanes.

Since we issued AD 2009-21-06, Amendment 39-16043 (74 FR 53151, October 16, 2009), the manufacturer has provided two options to fix the locking device, depending on airplane configuration: Installing an improved locking device for the cockpit door, or installing a gap filler between the cockpit door and the cockpit wall. We have determined these actions are necessary to address the identified unsafe condition. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0169, dated August 13, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

328 Support Services has issued the following service bulletins:

• SB-328-25-492, dated March 18, 2010 (for Model 328-100 airplanes);

• SB-328J-25-244, dated March 18, 2010 (for Model 328-300 airplanes);

• SB-328-25-491, dated March 18, 2010 (for Model 328-100 airplanes); and

• SB-328J-25-243, dated March 18, 2010 (for Model 328-300 airplanes).

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 59 products of U.S. registry.

The actions that are required by AD 2009-21-06, Amendment 39-16043 (74 FR 53151, October 16, 2009), and retained in this proposed AD take about 1 work-hour per product, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required actions is $85 per product.

We estimate that it would take 6 work-hours per product, depending on airplane configuration, to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost $2,315 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $166,675, or $2,825 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. 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.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Federal departments and agencies (agencies) are charged by executive orders with incorporating floodplain management goals and wetland protection considerations in their respective agency's planning, regulatory, and decision-making processes. A floodplain refers to the lowland and relatively flat areas adjoining inland and coastal waters including flood-prone areas of offshore islands that, at a minimum, are subject to a one percent or greater chance of flooding in any given year (often referred to as the “100-year” flood). Wetlands refer to those areas that are inundated by surface or ground water with a frequency sufficient to support and under normal circumstances does or would support a prevalence of vegetative or aquatic life that requires saturated or seasonally saturated soil conditions for growth and reproduction. Wetlands generally include swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet meadows, river overflows, mud flats, and natural ponds.

Executive Order 11988 (E.O. 11988) entitled “Floodplain Management,” dated May 24, 1977 (42 FR 26951), requires each Federal agency to identify and evaluate practicable alternatives to locating in the floodplain. If it is not practicable to avoid the floodplain, then each Federal agency must identify and evaluate the potential effects of any actions it may take in or affecting a floodplain. The goals of the Executive Order are: to avoid adversely impacting the natural functions of floodplains wherever possible; to ensure that the agency's planning programs and budget requests reflect consideration of flood hazards and floodplain management, including the restoration and preservation of such land areas as natural undeveloped floodplains; and to prescribe procedures to implement the policies and procedures of this Executive Order.

Executive Order 11990 (E.O. 11990), entitled “Protection of Wetlands,” dated May 24, 1977, (42 FR 26961) directs each agency to provide leadership and take action to minimize the destruction, loss, or degradation of wetlands. E.O. 11990 also directs each agency to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities for: (1) Acquiring, managing, and disposing of Federal lands and facilities; (2) providing federally undertaken, financed, or assisted construction or improvements; and (3) conducting Federal activities and programs affecting land use.

Although HUD has regulations on floodplain management at 24 CFR part 55, these regulations do not codify procedures for implementing E.O. 11990. Consistent with the intent of the executive orders, as noted above, HUD has relied to date on existing procedures established for floodplain management under 24 CFR part 55 to guide wetland protection considerations in planning, regulatory, and decision making processes. This rule proposes to codify in 24 CFR part 55 the procedures applicable to wetlands and authorized by E.O. 11990. Additionally, the hurricanes of 2005, particularly Hurricane Katrina, emphasized the need to review existing procedures on the protection of wetlands to determine how such procedures may be made more effective.

First, this rule proposes to codify procedures authorized by E.O. 11990. As noted in the preceding section of this preamble, HUD has not promulgated regulations to reflect E.O. 11990. E.O. 11990 was issued in furtherance of the National Environmental Policy Act of 1969 (NEPA) as amended (42 U.S.C. 4321 et seq. ). Through this rule, HUD proposes to adopt in regulation the procedures of E.O. 11990, in order to aid in the consistent application of policy and to increase compliance with it, by making the policy readily available in HUD's environmental regulations.

The wetland procedures authorized by E.O. 11990 require the completion of an eight-step process, referred to below as the “8 Step Process.” The 8 Step Process is administered by HUD, state governments, or units of local or tribal governments. Step 1 requires a determination of whether or not the proposed project to be developed with HUD financial assistance will be in a wetland. If so, Step 2 requires that a public notice be issued to inform interested parties that a proposal to consider an action in a wetland has been made. Following this notice, Step 3 requires the identification and evaluation of practicable alternatives to avoid locating the project in a wetland. Such an evaluation of alternatives shall include, for example, alternative locations outside the floodplain, feasible technological alternatives, and social values such as aesthetics, historic and cultural values, and land use patterns. Step 4 requires the identification and evaluation of the potential direct and indirect impacts associated with the occupancy or modification of wetlands. Step 4 also requires the identification of the potential direct and indirect support of floodplain and wetlands development that could result from the proposed action. Direct support consists of projects located in the floodplain such as housing, public service structures, or office buildings that require additional investment such as food service or parking. Indirect support for floodplain or wetland development can be caused by infrastructure that can induce further development due to proximity to the floodplain or wetland. Examples of indirect support include water and waste water systems, power supplies, roads, airports, and mass transit systems. Step 5 requires an analysis of practicable modifications and changes to the proposal to minimize adverse impacts to the wetlands and to the project as a result of its proposed location in wetlands. Under Step 6, the alternatives and the proposed wetland site are then reevaluated. If it is determined that there is no practicable alternative to the proposed wetland development, Step 7 requires a second notice to be issued to the public stating that the decision has been made and providing details associated with the decision. After this second notice, Step 8 implements the action, including any mitigating measures that were established during the decision-making process. This evaluation process requires the same eight steps as E.O. 11988, Floodplain Management, which is currently being implemented by HUD and other Federal agencies.

The rule also proposes to require appropriate and practicable compensatory mitigation for adverse impacts to more than one acre of wetlands. Compensatory mitigation resulting from other Federal, state, or local governmental requirements can be used to fulfill this requirement. Compensatory mitigation approaches include permittee-responsible mitigation, mitigation banking, in-lieu fee mitigation, the use of preservation easements or protective covenants, and any form promoted and approved by the authority of the state governments or the Federal Government. In certain situations, compensatory mitigation may not be practicable or appropriate due to the cost of compensatory mitigation in a state or watershed, a lack of funds within the project, or other reasons that make compensatory mitigation impossible. One example would be an Alaska Native village that is mainly in a wetland and is surrounded by Federal and state land. The cost in this situation could make compensatory mitigation inappropriate or impracticable.

Second, this rule proposes to allow HUD and HUD's recipients of assistance to use permits issued under section 404 of the Clean Water Act (33 U.S.C. 1344) (Section 404) in lieu of performing the first five steps of the 8 Step Process. This streamlined option will reduce costs and the processing time for complying with parts of the 8 Step Process for which adhering to the standard process affords minimal substantive benefit. The Clean Water Act establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating water quality standards for surface waters. 1 Section 404 of the Clean Water Act requires a landowner to obtain a permit from the U.S. Army Corps of Engineers (USACE) prior to beginning any nonexempt activity involving the placement of dredged or fill material in waters of the United States, including wetlands.

If the applicant has obtained an individual USACE Section 404 permit and submits the permit with its application for a HUD program, then HUD or the responsible entity will be required to complete only the last three steps of the 8 Step Process, and thus will be able to skip § 55.20(a) through (e). The last three steps include the publication of a single public notice, which will fulfill the early notice requirement of E.O. 11990 and thereby avoid the requirement under the usual 8 Step Process for the publication of two notices. If HUD or the responsible entity determines that a reevaluation or repeat of any of the steps is necessary to comply with E.O. 11990, HUD or the responsible entity will reevaluate and complete the necessary steps of the 8 Step Process. None of the 8 steps or any provisions of this rule should be interpreted as being requirements of the USACE's regulatory program. USACE has its own regulations, policies, and procedures, none of which are impacted by this proposed rulemaking.

Although Section 1(b) of E.O. 11990 excludes the issuance of permits for activities in nonfederal wetlands from coverage under the Executive Order, reliance on the Section 404 permitting process fulfills the Executive Order's intent. The exclusion for permits reflects the use of similar procedures and criteria for approval of a permitting action, including an initial public notice, consideration of practicable alternatives, and minimization of harm.

The issuance of a Section 404 permit may not substitute for processing under the 8 Step Process and compliance with E.O. 11988 where the property is also located in a floodplain. Section 404 of the Clean Water Act also allows states to administer an individual and general permit program in lieu of the USACE permit program. Section 404 permits issued by state agencies may be used in lieu of the first five steps of the E.O. 11990 process under this regulation.

All wetlands subject to Section 404 of the Clean Water Act are wetlands for the purposes of E.O. 11990. However, the combined process proposed by this rule will not apply in all instances, because wetlands not considered waters of the United States under Section 404 of the Clean Water Act are typically wetlands for the purposes of E.O. 11990. Wetlands not subject to Section 404 of the Clean Water Act must be processed under the proposed 8 Step Process.

Third, the proposed rule would broaden the use of the current 5 Step Process for repairs, rehabilitations, and improvements. The 5 Step Process is an abbreviated 8 Step Process that omits Steps 2, 3, and 7. Steps 2, 3, and 7 require the publication of two notices and the consideration of alternative sites. The 5 Step Process is currently used for a variety of activities specified in 24 CFR 55.12(a), such as disposition of HUD-owned properties and mortgage insurance for the purchase, refinancing, or rehabilitation of existing multifamily structures, which are not subject to certain additional conditions. An 8 Step Process is currently required for financial assistance, other than mortgage insurance, for rehabilitation of nonresidential or residential structures with more than four housing units located in floodplains. Rehabilitations subject to the 5 Step Process are any repair, reconstruction, modernization, or improvement of a structure that does not result in a 20 percent increase in the number of dwelling units or in the average peak number of customers and employees. The proposed rule will allow these rehabilitations of residential properties and nonresidential properties, including weatherization, to forego Steps 2, 3, and 7 of the 8 Step Process. As outlined above, Steps 2, 3, and 7 are the consideration of alternatives at Step 3 and the publication of the preliminary and final notice at Steps 2 and 7, respectively. This change will streamline project approvals and allow more resources to be devoted toward projects with greater impacts on floodplains and wetlands.

Fourth, the proposed rule would update a provision in HUD's regulations to require the use of preliminary flood maps and advisory base flood elevations in post-disaster situations where the Federal Emergency Management Agency (FEMA) has determined that existing Flood Insurance Rate Maps (FIRMs) may not be the “best available information” for floodplain management purposes. Currently, HUD's regulations at 24 CFR 55.2(b)(1) indicate that FIRMs are the only source of data for compliance with the 8 Step Process. In the wake of Hurricane Katrina, FEMA determined that the existing FIRMs may not reflect actual flood risk and issued Advisory Base Flood Elevations and Preliminary FIRMs. This change in map usage requirements will bring HUD's regulations into alignment with the requirement that agencies are to use the “best available information” located at Section 2(a)(1) of E.O. 11988. In addition, this change will provide greater consistency with floodplain management activities across HUD and FEMA programs.

Fifth, the proposed rule would exempt certain activities from the 8 Step Process for floodplain management compliance. Exempted activities include leasing structures insured with the National Flood Insurance Program (NFIP)  2 and not located in a floodway or Coastal High Hazard Area. The exemption for leased structures also requires that: (1) The leased structure is an existing structure; and (2) the structure is insured for its total value or up to the NFIP maximum as of the commencement of the lease term. If HUD or the grantee does not want to obtain flood insurance for the leased structure, the project can proceed by performing the 8 Step Process. Critical actions ( e.g., hospitals, nursing homes, and emergency services) in a 100- or 500-year floodplain are not covered by this exemption. Other exempt activities include special projects to increase access for those with special needs, activities involving ships or water-borne vessels, and activities that restore and preserve natural and beneficial functions of floodplains and wetlands. These changes will reduce unnecessary delays.

Sixth, the proposed rule would prohibit HUD funding or FHA mortgage insurance for the construction of new structures in Coastal High Hazard Areas. This change would not affect existing structures. Existing structures would be eligible to receive funding, and disaster assistance would continue to be available for reconstruction of structures destroyed by a disaster. FHA mortgage insurance would continue to be available as long as the mortgage insurance is not used to finance new construction. HUD's current regulations allow new construction in Coastal High Hazard Areas, if new structures are constructed to FEMA's standards at 44 CFR 60.3(e) and are not critical actions. (“Critical action” refers to any activity for which even a slight chance of flooding would be too great, because such flooding might result in loss of life, injury to persons, or damage to property. See 24 CFR 55.2.) This change will prevent new development in Coastal High Hazard Areas, which will result in less development in areas of higher risk to lives and property. However, as discussed later in this preamble, HUD currently receives few requests to fund new construction or provide FHA mortgage insurance for new construction in Coastal High Hazard Areas. The change will also further align HUD's development standards with those of FEMA grant programs.

Seventh, 24 CFR 55.26 would be amended to make clear that under the executive orders, HUD or a responsible entity may adopt previous review processes that were performed by another responsible entity or HUD. This change will prevent duplicative processing in cases where a project may have multiple recipients contributing funding or has funding that may not allow the responsible entity to perform the review. Nothing in the proposed rule or part is binding or applicable to the USACE or USACE processes. USACE has its own regulations, policies, and procedures, which are not impacted by this part.

Finally, the proposed rule will amend 24 CFR 58.35(a)(3)(i) by modifying the categorical exclusion from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321) for minor rehabilitation of one- to four-unit residential properties, by removing the qualification that the footprint of the structure may not be increased in a floodplain or wetland. Currently, four units can be constructed in a floodplain or wetland as an individual action under the categorical exclusion in § 58.35(a)(4)(i), but rehabilitated structures in a floodplain or wetland require a full environmental assessment. It is logically inconsistent to require a greater review for minor rehabilitations than for new construction. The proposed rule resolves this inconsistency but will still require part 55 processing for construction in floodplains and wetlands. HUD believes that this change will eliminate needless assessments without contributing to environmental degradation. HUD is basing its conclusion on a recent survey of its environmental experts.

In addition to these proposed changes, HUD is also specifically soliciting public comment regarding a potential change to § 55.20(e). The change would require that all new construction of “critical actions” in the 100- or 500-year floodplain be elevated to the 500-year base flood elevation. A “critical action” is “any activity for which even a slight chance of flooding would be too great, because such flooding might result in loss of life, injury to persons, or damage to property.” Examples of critical actions include hospitals, nursing homes, emergency response centers, and flammable or explosive materials storage facilities. This potential change would make HUD's regulations in 24 CFR part 55 more consistent with guidance documents issued by the Water Resources Council and consistent with FEMA's E.O. 11988 regulations at 44 CFR 9.11(d)(3). This change would increase the current elevation standard for critical actions from the 100-year base flood level to the 500-year level.

The specific regulatory revisions proposed to be made to HUD's regulations are as follows:

Section 50.4 of HUD's regulations in 24 CFR part 50, which address related Federal laws and authorities, would be amended to have § 50.4(b), which addresses flood insurance, floodplain management, and wetlands protection, reflect the change in the title of 24 CFR part 55 to include “Protection of Wetlands” and reflect implementation of E.O. 11990 in 24 CFR part 55.

Section 55.1, which addresses the purpose and basic responsibilities of floodplain management, would be updated to better describe how to evaluate impacts on floodplains and wetlands and to provide that part 50 now explicitly address procedures on wetland protection. The mandatory purchase of flood insurance under the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001-4128) is currently required for federally funded construction and acquisition in FEMA's identified special flood hazard areas. The requirements of section 582 of the National Flood Insurance Reform Act of 1994 (42 U.S.C. 5154a), currently stated in HUD's regulations at 24 CFR 58.6, would be added to 24 CFR part 55 to support compliance with the mandatory purchase of flood insurance. Finally, the prohibition on floodway activities would be edited to allow for activities that support beneficial floodplain functions.

Section 55.2, which defines terms used in floodplain management, would be amended to update existing terms in this section and add new terminology. To the extent that the names of these terms as designated by FEMA's regulations need to be updated, the proposed amendments would do so without any change to the basic meaning of these terms. With respect to new terms, the term “Compensatory mitigation” would be added consistent with the definition of the term promulgated by the Environmental Protection Agency and the United States Army Corps of Engineers (USACE) in 2008 (See Compensatory Mitigation for Losses of Aquatic Resources, 73 FR 19594). The terms “Wetlands” and “New Construction” would be added consistent with those defined by E.O. 11990. The definition of wetlands also includes a process for identifying wetlands and utilizing appropriate wetlands professionals. These are the only new terms added under the proposed rule.

Section 55.3, which delineates floodplain management responsibilities, would be amended to reflect the existence of “responsible entities” under 24 CFR part 58 (Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities) and the addition of E.O. 11990 wetland procedures.

Section 55.10, which addresses the environmental review procedures under 24 CFR parts 50 and 58, would be amended to explicitly add wetland protection and reflect implementation of E.O. 11990 in part 55 as an element of the environmental review process.

Section 55.11, which addresses the applicability of floodplain management decision making as provided in 24 CFR part 55, subpart C, would be amended to incorporate the purpose of floodplain management, as provided in E.O. 11988, and the purpose of wetlands protection, as provided in E.O. 11990. The proposed rule also amends this section to adopt the previously explained 8 Step Process for wetlands. This process will provide a standardized and efficient method for addressing E.O. 11990. The proposed rule also would address adverse effects to floodplains and wetlands.

Section 55.12, which addresses the inapplicability of floodplain management to certain categories of proposed actions, would be amended to remove HUD programs that no longer exist and add exemptions from the full process. Financial assistance for weatherizations and rehabilitations of multifamily structures would be granted the use of a shortened 5 Step Process that currently applies to mortgage insurance actions for rehabilitation and improvements. Floodplain and wetland restoration activities, including demolition, would be exempt from § 55.20 processing. Leasing of an existing structure would also be granted an exemption from the 8 Step Process, so long as the structure is not in a floodway or Coastal High Hazard Area, and the structure is insured with the National Flood Insurance Program. Additionally, the leasing exemption does not apply to critical actions in the 100- or 500-year floodplain. An exemption also would be added for special projects directed to the removal of material and architectural barriers that restrict the mobility of and accessibility to elderly and persons with disabilities. Financial assistance for ships and water-borne vessels would also be exempt from § 55.20 processing. These changes would reduce unnecessary processing and result in a decreased amount of analysis for projects that have no or little adverse impact or have beneficial effects.

Section 55.20, which currently addresses the decision making process for floodplain management, would be amended to include the decision making process for wetlands protection. Step 3 of the 8 Step Process, which requires the consideration of practicable alternatives, would also be amended to require that mitigation costs be considered.

Section 55.22, which addresses conveyance restrictions for the disposition of multifamily real property, would be amended by adding the word “wetland” in each place where the term floodplains is addressed by the section.

Section 55.27, which addresses documentation required in floodplain management, would add “wetlands” and remove a reference to 24 CFR 570.3 to allow for a general definition of “unit of general local government.”

Sections 55.21, 55.25, 55.26, and 55.27, which address notification of floodplain hazard, areawide compliance, adoption of another agency's review under the executive orders, and documentation, respectively, would change the terms “grant recipient” to “responsible entity.” This would add specificity and consistency to 24 CFR part 55. Section 55.26 will also be edited to make it clear that HUD can adopt a review performed by a responsible entity, and that a responsible entity may adopt a review performed by HUD or another responsible entity.

A new § 55.28 would be added to allow for HUD to process wetlands impacts and for recipients of HUD assistance to use permits issued under section 404 of the Clean Water Act in lieu of five steps of the E.O. 11990's eight-step process. Processing under this section will reduce the time devoted to environmental processes, by allowing an existing individual Section 404 permit to substitute for the first five steps of the 8 Step Process for wetlands located outside the floodplain.

Section 58.5 of HUD's regulations, which address related Federal laws and authorities, would be amended to have § 58.5(b), which addresses flood insurance, floodplain management, and wetlands protection, reflect the change in the title of 24 CFR part 55 to include “Protection of Wetlands” and reflect implementation of E.O. 11990 in 24 CFR part 55. This proposed rule would also amend § 58.6, which addresses other requirements, by adding a new paragraph (a)(4) that would state that flood insurance requirements cannot be fulfilled by self-insurance except as authorized by law for assistance to state-owned projects within states approved by the FEMA Administrator consistent with 44 CFR 75.11. Additionally, HUD also proposes to amend § 58.35, which addresses Categorical Exclusions, by revising the categorical exclusion from environmental assessment under NEPA for minor rehabilitation of one- to four-unit residential properties by removing in § 58.35(a)(3)(i) the qualification that the footprint of the structure may not be increased in a floodplain or wetland.

The Office of Management and Budget (OMB) reviewed this proposed rule under E.O. 12866 (entitled “Regulatory Planning and Review”). The proposed rule has been determined to be a “significant regulatory action,” as defined in section 3(f) of the Order, but not economically significant, as provided in section 3(f)(1) of the Order.

The majority of the regulatory changes proposed by this rule will have minor economic effects. The primary purpose of this rule is to streamline the existing procedures pertaining to floodplain management and protection of wetlands that are already in place. However, two changes proposed by HUD are anticipated to have some economic effect. These two changes are: (1) HUD's proposal to streamline the approval process for rehabilitations, repairs, and improvements of HUD-funded properties in floodplains and wetlands; and (2) HUD's proposal to prohibit new construction that would either be funded by HUD or have mortgages insured by FHA in Coastal High Hazard Areas. The proposed streamlined process for rehabilitations will lower costs for projects, which could induce more improvement activities. The proposal to prohibit new construction in Coastal High Hazard Areas could affect the siting of properties, but these projects are rarely proposed or approved even in the absence of a prohibition.

Streamlined Procedures for Rehabilitations, Repairs, and Improvements of Multifamily Properties in Floodplains. HUD or responsible entities reviewing proposals for rehabilitations, repairs, and improvements to multifamily properties located in floodplains are required to follow the 8 Step Process to minimize the impact to floodplains. The proposed change would abbreviate the process for these proposals, because the process no longer requires public notices or the consideration of alternatives for floodplain executive order compliance. The benefits of this proposed change arise from the reduced compliance costs associated with the eliminated steps. Total labor compliance costs for the entire 8 Step Process have been estimated at $320 per project. A more detailed step-by-step cost estimate is not available. However, if eliminating the three steps saves 10 to 15 percent of the total labor cost of compliance, then each rehabilitation project would save between $32 and $48. Costs to publish the notices would be added to this amount for the overall cost of compliance. The precise number of proposed rehabilitation, repair, and improvement projects is not available, although the overall number is estimated to be less than 100 annually. Although the reduced compliance costs could, on the margin, induce an increase in the requests for funding, that increase is unlikely considering that the cost of these projects generally range from thousands to millions of dollars. For this analysis, HUD estimates an annual total of 100 projects, including the induced projects. One hundred such projects would produce benefits ranging from $3,200 and $4,800 plus minimal costs of publication. Since these assessments rarely lead to a different outcome for rehabilitation, repair, and improvement projects, the lost benefits of not conducting a full floodplain assessment—the cost of this provision—are negligible.

Prohibition on New Construction in Coastal High Hazard Areas. Prohibiting new construction in Coastal High Hazard Areas would force developers to locate HUD-funded or FHA-insured properties out of hazard areas subject to high velocity waters. This prohibition would not affect developments that are destroyed by floods and that need to be rebuilt. Existing property owners interested in developing in Coastal High Hazard Areas would either incur transaction costs from selling the existing property and purchasing an alternative site, or obtain a more expensive source of funding/assistance. However, based on HUD's records, it is extremely rare for HUD to fund, or provide mortgage insurance for, a new construction proposal in these coastal areas. HUD found only one project that that been completed in a Coastal High Hazard Area, and one additional project is currently under review. These projects were approximately 6 years apart. Thus, HUD believes that this provision will not have a significant impact.

Accordingly, this proposed rule is expected to create an annual economic impact ranging from $3,200 to $4,800, which are avoided costs resulting from a streamlined approval process for rehabilitations of properties located in floodplains. Thus, the implementation of this rule will not create an impact exceeding the $100 million threshold established by E.O. 12866.

The docket file is available for public inspection in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulations Division at (202) 402-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service at (800) 877-8339.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities.

The proposed rule would codify HUD's policies and procedures implementing E.O. 11990, Protection of Wetlands. The goal of the Executive Order is to prevent adverse impacts associated with the destruction or modification of wetlands. E.O. 11990 establishes a uniform set of requirements designed to meet this goal and that are applicable to both large and small entities. The proposed rule would also broaden the use of the abbreviated 8 Step Process also known as the 5 Step Process, used by HUD and responsible entities when considering the impact on floodplains in connection with the repair of existing structures. Specifically, the rule proposes to authorize the use of the abbreviated process for all of HUD's rehabilitation programs. The current regulations limit the use of the abbreviated process to repairs financed under HUD's mortgage insurance programs.

The proposed rule clarifies existing requirements, streamlines processes, and increases access to expedited approval procedures in certain circumstances. These changes would decrease burdens on small entities. Therefore, the undersigned has determined that the proposed rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in the preamble to this rule.

A Finding of No Significant Impact (FONSI) with respect to environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of NEPA (42 U.S.C. 4332(2)(C)). The Finding of No Significant Impact is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the FONSI by calling the Regulations Division at (202) 708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the toll-free Federal Relay Service at (800) 877-8339.

E.O. 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Order. This rule does not have federalism implications and would not impose substantial direct compliance costs on state and local governments nor preempt state law within the meaning of the Order.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule does not impose any Federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of UMRA.

The information collection requirements contained in this proposed rule have been submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.

The burden of the information collections in this proposed rule is estimated as follows:

In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from members of the public and affected agencies concerning this collection of information to:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.

Interested persons are invited to submit comments regarding the information collection requirements in this rule. Comments must refer to the proposal by name and docket number (FR-5423-P-01) and be sent to:

Interested persons may submit comments regarding the information collection requirements electronically through the Federal eRulemaking Portal at http://www.regulations.gov. HUD strongly encourages commenters to submit comments electronically. Electronic submission of comments allows the commenter maximum time to prepare and submit comments, ensures timely receipt by HUD, and enables HUD to make them immediately available to the public. Comments submitted electronically through the http://www.regulations.gov Web site can be viewed by other commenters and interested members of the public. Commenters should follow the instructions provided on that site to submit comments electronically.

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0999), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2011-0999” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0999” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one on or before January 3, 2012, using one of the four methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The legal basis for the proposed rule is 33 U.S.C. 1226, 1231, 1233; 46 U.S.C. Chapter 454, 701, 3306, 3703; 50 U.S.C. 191, 195; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define regulatory safety zones.

On May 10, 2012 New York Fun Factory Events is sponsoring a fireworks display on the waters of western Long Island Sound, Mamaroneck, NY, no rain date is scheduled for this event. Due to the need to protect mariners and spectators from the hazards associated with fireworks display, such as the accidental discharge of fireworks, dangerous projectiles and falling embers or other debris, vessel traffic will be temporarily restricted within 240 yards radius of the launch platform.

The Coast Guard proposes to establish a temporary safety zone on the waters of western Long Island Sound to ensure the safety of spectators and vessels from hazards associated with the fireworks display.

The fireworks display is scheduled to occur on May 10, 2012 from 9:30 p.m. until 9:45 p.m. In order to ensure the area is clear of persons and vessels before the display begins, and to allow sufficient time after the fireworks end to ensure no explosive hazards remain, this proposed rule will be enforced from 9 p.m. until 10:15 p.m. on May 10, 2012.

In the interest of public safety, general navigation within the proposed safety zone will be restricted during the specified date and times. All persons and vessels will be required to comply with the instructions of the COTP New York or the designated representative. Vessels entering into, transiting through, mooring or anchoring within the proposed zone during the enforcement period will be prohibited unless authorized by the COTP New York, or the designated representative, who may be contacted via VHF Channel 16.

Public notifications will be made to the local maritime community prior to the event through the Local Notice to Mariners and Broadcast Notice to Mariners.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation under Executive Order 12866.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this regulation may have some impact on the public, the potential impact will be minimized for the following reasons: The safety zone will be in effect for a limited duration, the zone is of limited size, vessels may transit around the restricted area, and notifications will be made to the local maritime community via the Local Notice to Mariners and Broadcast Notice to Mariners well in advance of this event.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities because the zone will only be in place for a limited duration, one hour and 15 minutes; it is limited in size; and maritime advisories will be issued allowing mariners to adjust their plans accordingly.

This proposed rule would affect the following entities, some of which might be small entities: The owners and operators of vessels intending to transit or anchor in that portion of western Long Island Sound from 9 p.m. to 10:15 p.m. on May 10, 2012.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT . The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-(888) 734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b) (2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES . This proposed rule involves establishing a safety zone around a fireworks display. The fireworks will be launched from a barge and the safety zone is intended to keep mariners away from potential hazards associated with fireworks displays. As such, it appears that this action will qualify for Coast Guard Categorical Exclusions (34)(g), as described in figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

Table of Contents I. What is required by the Clean Air Act (Act) and how does it apply to New York? A. What is the history and time frame for State Implementation Plan (SIP) submissions? B. What are the moderate area requirements? II. What was included in New York's submittals? III. What is EPA's evaluation of Part 228, “Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers?” A. Background B. What are the requirements of Part 228, “Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers?” C. What is EPA's evaluation? IV. What is EPA's evaluation of Part 234, “Graphic Arts?” A. Background B. What are the requirements of Part 234, “Graphic Arts?” C. What is EPA's evaluation? V. What is EPA's Evaluation of Part 241, “Asphalt Pavement and Asphalt Based Surface Coating?” A. Background B. What are the requirements of Part 241, “Asphalt Pavement and Asphalt Based Surface Coating?” C. What is EPA's evaluation? VI. What is EPA's conclusion? VII. Statutory and Executive Order Reviews I. What is required by the Clean Air Act (Act) and how does it apply to New York? A. What is the history and time frame for State Implementation Plan (SIP) submissions?

In 1997, EPA revised the health-based national ambient air quality standards (NAAQS or standard) for ozone, setting it at 0.08 parts per million averaged over an 8-hour period. EPA set the 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower ozone concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone standard was set. EPA determined that the 8-hour standard would be more protective of human health, especially with regard to children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma.

On April 30, 2004 (69 FR 23858), EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 8-hour ozone standard. These actions became effective on June 15, 2004. The three 8-hour ozone moderate nonattainment areas located in New York State are: The New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area; the Poughkeepsie nonattainment area; and the Jefferson County nonattainment area. The New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area is composed of the five boroughs of New York City and the surrounding counties of Nassau, Suffolk, Westchester and Rockland. This is collectively referred to as the New York City Metropolitan Area or NYMA. The Poughkeepsie nonattainment area is composed of Dutchess, Orange and Putnam counties. On December 7, 2009 (74 FR 63993), EPA determined that the Poughkeepsie area attained the 8-hour ozone standard and on March 25, 2008 (73 FR 15672) EPA determined that Jefferson County attained the 8-hour ozone standard.

These designations triggered the Act's requirements under section 182(b) for moderate nonattainment areas, including a requirement to submit a demonstration of attainment. To assist states in meeting the Act's requirements for ozone, EPA released an 8-hour ozone implementation rule in two phases. EPA's Phase 1 8-hour ozone implementation rule, published on April 30, 2004 (69 FR 23951) and referred to as the Phase 1 Rule, specifies that states must submit these attainment demonstrations to EPA by no later than three years from the effective date of designation—that is, submit them by June 15, 2007. 1

On November 29, 2005, EPA published Phase 2 of the 8-hour ozone implementation rule (70 FR 71612), referred to as the Phase 2 Rule, which addressed the control and state plan obligations that apply to areas designated nonattainment for the 8-hour NAAQS. Among other things, the Phase 1 and Phase 2 Rules outline the SIP requirements and deadlines for various requirements in areas designated as moderate nonattainment. For such areas, reasonably available control technology (RACT) plans were due by September 2006 (40 CFR 51.912(a)(2)).

Both rules require that modeling and attainment demonstrations, reasonable further progress plans, reasonably available control measure (RACM) analysis, projection year emission inventories, motor vehicle emissions budgets and contingency measures were all due by June 15, 2007 (40 CFR 51.908(a)).

The Ozone Transport Commission (OTC) developed recommended control measures into model rules for a number of source categories and estimated emission reduction benefits from implementing these model rules. These model rules were designed for use by states in Ozone Transport Region to develop their own regulations to achieve additional emission reductions to close emission shortfalls.

On August 19, 2010 and December 15, 2010, the New York State Department of Environmental Conservation (NYSDEC), submitted to EPA proposed revisions to the SIP, which included state adopted revisions to three regulations contained in Title 6 of the New York Code of Rules and Regulations (6 NYCRR) part 228, “Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers,” part 234, “Graphic Arts,” and Part 241, “Asphalt Pavement and Asphalt Based Surface Coating” with effective dates of September 30, 2010, July 8, 2010 and January 1, 2011, respectively. These revisions are applicable statewide and will therefore provide volatile organic compound (VOC) emission reductions statewide and will address, in part, attainment of the 1997 8-hour ozone standard in the NYMA and towards meeting the RACT and RACM requirements.

The OTC states developed a Model Rule entitled “OTC Model Rule for Adhesives and Sealants,” dated 2006, which was based on the 1998 California Air Resources Board RACT determination. This RACT determination applied to both the manufacture and use of adhesives, sealants, adhesive primers or sealant primers, in both industrial/manufacturing facilities and in the field. California air districts used this determination to develop regulations for this category. The EPA addressed this source category with a Control Techniques Guideline (CTG) document for Miscellaneous Industrial Adhesives dated September 2008. This CTG was developed in response to the Section 183(e) requirement for EPA to study and regulate consumer and commercial products included in EPA's March 23, 1995 Report to Congress, “Study of Volatile Organic Compound Emissions from Consumer and Commercial Products—Comprehensive Emissions Inventory,” (EPA-4531R-94-006(b). See 60 FR 15264 (March 23, 1995). The section 183(e) miscellaneous industrial adhesives category was limited to adhesives and adhesive primers used in industrial/manufacturing operations and did not include products applied in the field. Accordingly, the OTC Model Rule and state efforts in developing individual regulations preceded EPA's CTG for this source category and were broader in applicability.

The revisions to part 228 are based on the 2006 OTC model rule for commercial and industrial adhesives and sealants, which, in turn, is based on the RACT and best available retrofit control technology determination developed in 1998 by the California Air Resources Board. In addition, the revised rule incorporates EPA's recommendations contained in the CTG document released in 2008 entitled, “Control Technique Guidelines for Miscellaneous Industrial Adhesives” (EPA 453/R-08-005), including adhesive application methods, and work practices for adhesive-related handling activities and cleaning materials. The revisions along with the retained provisions to Part 228 include the following:

• Regulation of the application of commercial and industrial adhesives, sealants, adhesive primers and sealant primers by providing options for appliers either to use a product with a VOC content equal to or less than a specified limit or to use add-on controls;

• Work practices for mixing and handling operations for adhesives, thinners and adhesive-related waste materials;

• Establishment of a VOC limit for surface preparation solvents;

• Establishment of an alternative add-on control system requirement of at least 85 percent overall control efficiency (capture and destruction efficiency), by weight;

• VOC containing materials to be stored or disposed of in closed containers;

• Prohibition of the sale of any commercial or industrial adhesive, sealant, adhesive primer or sealant primer that exceeds the VOC content limits listed in the rule;

• Manufacturers to label containers with the maximum VOC content as supplied, as well as the maximum VOC content on an as-applied basis when used in accordance with the manufacturer's recommendations regarding thinning, reducing, or mixing with any other VOC containing material;

• Prohibition of the specification of any commercial or industrial adhesive, sealant or primer that violates the provisions of the rule; and

• An allowance for process-specific RACT determinations that shall be submitted to EPA for review and approval as SIP revisions.

Part 228 contains the required elements for a federally enforceable rule: emission limitations, compliance procedures and test methods, compliance dates and record keeping provisions.

In contrast to the CTG, part 228 is applicable to all stationary sources including those applications that occur outside of the factory setting- that is, applied in the field. In addition, it includes provisions that apply to the selling, supplying, offering for sale or manufacture for sale in New York of adhesives, sealants, adhesive primers and sealant primers, along with container labeling requirements and product registrations. The VOC content restrictions for these products apply to both their manufacture and application. Stationary sources also have the option of using add-on control equipment provided it achieves 85 percent control. Part 228 also regulates the VOC content/vapor pressure of surface-preparation and clean-up solvents for which the CTG did not make recommendations other than including work practices.

EPA recommends that states evaluate RACT, as required by section 182(b) when implementing a revised 8-hour ozone standard and that they review the VOC content limits for wood adhesives. This category of adhesives is included in the CTG recommended VOC emission limits. Overall, part 228: (1) Regulates the same adhesives and adhesive primers as the CTG with the addition of regulating sealants and sealant primers, (2) applies to additional stationary sources, and (3) provides for similar exemptions as the CTG recommends.

EPA has evaluated New York's submittal for consistency with the Act, EPA regulations, and EPA policy. EPA has determined that part 228 is as effective in regulating this source category as the CTG and proposes to approve it as part of the SIP and as meeting the requirement to adopt a RACT rule for the Miscellaneous Industrial Adhesives CTG category.

In September 2006, EPA issued two CTG documents, one for Offset Lithographic Printing and Letterpress Printing and a second for Flexible Package Printing. These CTG's were developed in response to the section 183(e) requirement for EPA to study and regulate consumer and commercial products included in EPA's March 23, 1995 Report to Congress, “Study of Volatile Organic Compound Emissions from Consumer and Commercial Products—Comprehensive Emissions Inventory.” The first CTG addresses both the offset lithographic printing industry and the letterpress printing industry. Although offset lithographic printing and letterpress printing are two distinct product categories on the section 183(e) list, they have many similarities in the types of inks and cleaning materials used, the sources of VOC emissions, and the controls available to address those emissions. EPA therefore addresses both categories in this CTG. This CTG provides control recommendations for reducing VOC emissions stemming from the use of fountain solutions, cleaning materials and inks in offset lithographic printing and cleaning materials and inks in letterpress printing.

The second CTG provides control recommendations for reducing VOC emissions from inks, coatings, adhesives and cleaning materials used in flexible package printing operations.

The revisions to part 234 expand the applicability to part 234 to include letterpress printing and establish RACT requirements on facilities that engage in flexographic, offset lithographic and rotogravure printing. They also impose requirements for graphic arts coatings and adhesives and for cleaning solutions used in letterpress and offset lithographic printing. The revised part 234 includes the following:

• Several new definitions, including new definitions for various types of printing equipment and processes, control equipment, and cleaning materials.

• Emission control requirements for graphic arts printing processes, which outline minimum control efficiencies for reducing the amount of VOCs emitted by graphic arts printing processes. Operators may choose to use compliant materials with low VOC content or install and operate emission control equipment.

• Testing and monitoring requirements for graphic arts facilities that choose to comply with Part 234 by installing and operating emission control equipment. Also required are continuous emission control equipment monitors that must be installed and operated on all printing process emission control equipment at graphic arts facilities.

• A prohibition of the sale or specification of any coatings, inks or adhesives that is specifically prohibited by any provision of part 234. Use or specification of such material is allowed only when part 234 compliant emission control equipment has been installed, or the material has been granted a variance by the NYSDEC. Part 234 also requires that coating, ink and adhesive vendors provide product specifications to the buyer upon request.

• Handling, storage and disposal of VOC requirements. Owners and operators of graphic arts printing processes are prohibited from storing inks, coatings, adhesives, cleaning materials, and cloths or papers that contain any amount of VOCs in open containers.

• Recordkeeping requirements. Owners and operators of graphic arts printing processes must retain purchase and use records of inks, coatings, adhesives, VOCs, solvents, fountain solutions, cleaning materials and any other information required to determine compliance with the regulation at the facility for a period of five years. Part 234 also allows NYSDEC to obtain a sample of any material containing VOC in order to determine compliance with part 234. Facilities that meet any of the exemption criteria in part 234 must retain records that demonstrate their qualification for the exemption.

• A requirement that the opacity from any emission source subject to Part 234 be no more than ten percent.

Part 234 contains the required elements for a federally enforceable rule: emission limitations, compliance procedures and test methods, compliance dates and record keeping provisions.

In contrast to the CTGs, part 234 is generally applicable to all graphic arts facilities located in a severe ozone nonattainment area, which includes the NYMA, or to facilities that emit total actual annual VOC graphic arts emissions of three tons or more on a 12-month rolling basis, which is consistent with or more stringent than the CTG's.

In addition to the general revisions to part 234, the revised section 234.3 addresses the CTG for Offset Lithographic Printing and Letterpress Printing. Subsections (b), (c) and (d) were added and require more stringent emission controls. Subsection 234.3(b) requires control equipment achieve overall removal efficiencies, i.e., 90 percent if installed prior to July 8, 2010 and 95 percent if installed on or after July 8, 2010. Subsection 234.3(d) includes the VOC limits for heatset web, sheet-fed and cold-set offset lithographic printing processes. Subsection 234.3(c) limits provisions for cleaning materials to a composite vapor pressure less than 10 mm Hg (millimeters mercury) or VOC content of less than 70 percent by weight, with some exceptions. In addition, section 234.6 requires best management practices for handling, storage and disposal of VOCs, such as keeping VOC and VOC containing materials in closed containers, keeping VOC containing shop towels in closed containers, and recordkeeping requirements. These revisions are consistent with the CTG recommendations issued on October 5, 2006.

EPA evaluated these provisions for consistency with the Act, EPA regulations, and EPA policy and proposes to approve them.

In addition to the general provisions of part 234, the revised subsection 234.3(a) addresses the CTG for Flexible Package Printing. Subsection 234.3(a)(1)(ii) was added and requires more stringent emission controls for publication rotogravure and other printing processes. Subsection 234.3(a)(1)(i) contains new maximum allowable VOC content limits for inks, coatings and adhesives (minus water). Section 234.6 requires best management practices (see above description). These revisions are consistent with the CTG recommendations issued on October 5, 2006.

EPA evaluated these provisions for consistency with the Act, EPA regulations, and EPA policy and proposes to approve them.

Asphalt paving is used to pave, seal and repair surfaces such as roads, parking lots, drives, walkways and airport runways. Asphalt paving is grouped into three general categories: hot mix, cutback, and emulsified. Hot mix asphalt paving is sometimes “cutback” (thinned) with volatile organic solvents to ensure the mix can be properly applied. Since August 21, 1983, the use of cutback asphalt during the summer months has been prohibited pursuant to the provisions of 6 NYCRR part 211, “General Prohibitions.”

Previously, the maximum amount of VOCs that was allowed to be contained in asphalt was limited by the provisions of section 211.4(b). The VOC content of asphalt based surface coatings is subject to the limit established in part 205, “Architectural and Industrial Maintenance (AIM) Coatings,” for the general category of flat coatings.

EPA provided guidance on the reduction of VOC from asphalt, and included cost information in their “Control of VOCs from Use of Cutback Asphalt” EPA-450/2-77-037.

NYSDEC revised 6 NYCRR parts 205 and 211 and promulgated a new part 241 that will provide VOC emission reductions from asphalt pavement and asphalt based surface coatings as part of the effort to reduce ozone pollution in the State and reach attainment of the 8-hour ozone NAAQS. Part 241 is applicable statewide to any entity that applies, supplies, sells, offers for sale or manufactures any asphalt pavement and any asphalt based surface coatings.

Part 241 contains all of the regulatory provisions applicable to asphalt pavements and asphalt based surface coatings. The revisions to VOC emission limits from asphalt pavement and asphalt based surface coatings are expected to have a minimal impact on consumers since formulations already exist that meet the New York revised limits.

Part 241 contains the regulatory provisions applicable to asphalt pavements and asphalt based surface coatings. These provisions were previously regulated under parts 205 and 211. New York revised these two rules by removing the asphalt provisions and moving them into new rule part 241.

New York removed the seasonal limit that allowed the use of cutback asphalt from October 16th to May 1st. Part 241 only allows the use of cutback asphalt in two circumstances: when the asphalt is used in the production of long-life stockpile material for pavement patching and repair and when the asphalt is used as a penetrating prime coat for the purpose of preparing a surface to receive asphalt pavement.

New York included a VOC content limit in Part 241 for asphalt surface coatings. No asphalt based surface coating may be applied, sold, offered for sale, or manufactured if it contains more than 100 grams of VOC per liter. This is consistent with the limit that was previously included in part 205.

Part 241 also includes limits for emulsified asphalt. No emulsified asphalt, as classified under ASTM International standard specifications D 977 or D 2397 may be applied, sold, offered for sale, or manufactured that contains oil distillate, as determined by ASTM International standard test method D 6997, in amounts that exceed the following limits (milliliters of oil distillate per 200 gram sample):

(a) Three milliliters for ASTM grades RS-1, SS-1, SS-1h, CRS-1, CSS-1, and CSS-1h;

(b) Five milliliters for ASTM grades RS-2, CRS-2, and HFRS-2;

(c) Sixteen milliliters for ASTM grades MS-2, HFMS-2 and HFMS-2h; and

(d) Twenty milliliters for ASTM grades CMS-2 and CMS-2h.

Similar limits were previously included in part 211 but they were expressed as VOC content limits in percent by weight. The revised limits included in part 241 are approximately 17-25 percent more stringent than what was previously included in part 211.

EPA notes that while the revised limits in part 241 are more stringent than the previous limits included in part 211, the States of New Jersey, Delaware and Connecticut have adopted emission limits more stringent than part 241, specifically during the ozone season months. EPA recommends that when New York evaluates RACT, as is required by section 182(b) when implementing a revised 8-hour ozone standard, that New York consider more stringent asphalt paving limits in line with those adopted by the neighboring states.

EPA evaluated the provisions of part 241 for consistency with the Act, EPA regulations, and EPA policy and proposes to approve them.

EPA has evaluated New York's submittal for consistency with the Act, EPA regulations, and EPA policy. EPA proposes that the revisions made to title 6 of the New York Code of Rules and Regulations (6 NYCRR) part 228, “Surface Coating Processes, Commercial and Industrial Adhesives, Sealants and Primers,” part 234, “Graphic Arts,” and new part 241, “Asphalt Pavement and Asphalt Based Surface Coating,” with effective dates of September 30, 2010, July 8, 2010 and January 1, 2011, respectively, meet the SIP requirements of the Act and fulfill the recommended controls identified in the applicable CTGs. EPA is proposing to approve these revisions and is also proposing to approve the revisions made to 6 NYCRR Part 205, “Architectural and Industrial Maintenance (AIM) Coatings” and Part 211, “General Prohibitions,” both effective January 1, 2011, to avoid redundancy and conflict of the asphalt paving and coating provisions included in new part 241.

Under the Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) because application of those requirements would be inconsistent with the Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule approving Virginia's general conformity SIP revision and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this notice, the National Highway Traffic Safety Administration (NHTSA) addresses safety issues arising from increased availability of ignition systems that do not use physical keys to start and stop passenger motor vehicles' engines or other propulsion systems. At issue are drivers' inability to stop a moving vehicle in a panic situation, and drivers who unintentionally leave the vehicle without the vehicle transmission's being locked in “park,” or with the engine still running, increasing the chances of vehicle rollaway or carbon monoxide poisoning in an enclosed area.

Therefore in this NPRM, among other matters, we propose to standardize the length of time it is necessary to push a control to stop the vehicle engine or other propulsion system. We are also proposing to require that an audible warning be given to any driver who: (1) Attempts to shut down the propulsion system without first moving the gear selection control to the “park” position (for vehicles with a “park” position); (2) exits a vehicle without having first moved the gear selection control to “park” (for vehicles with a “park” position), or (3) exits a vehicle without first turning off the propulsion system.

This rulemaking action is undertaken in response to our review of complaints from consumers to our Office of Defects Investigation (ODI) reporting incidents such as those described above and investigations of crashes and complaints regarding unintended acceleration. 1 While we recognize that this is not the traditional data base upon which our agency typically bases a rulemaking, we believe that, in this instance, we are addressing an emerging safety issue with non-standardized new technology in way that imposes minimal cost on vehicle manufacturers, especially given that the proposed two-year lead time of the new requirements, and that many vehicles already have some form of the features we are proposing today.

Today's proposal would, if finalized:

• Clarify that definitions for “key” and “starting system” currently in Federal Motor Vehicle Safety Standard (FMVSS) No. 114 apply to all propulsion systems.

• Propose a new definition for “key code carrying device.”

• Propose to revise the definition of “starting system.”

• Propose a new definition for “stop control.”

• Delete the door opening alert exclusion currently in FMVSS No. 114 for a running vehicle (only for vehicles equipped with keyless ignition).

• Add requirements for the operation of a pushed stop control: The driver must hold the control for a minimum of 500 milliseconds to shut down the propulsion system, whether the vehicle is moving or stationary, and the propulsion system must shut down within 1 second of the initial push of the stop control.

• Add a requirement for an internal alert to the driver when s/he requests propulsion system shut down without first placing the gear selection control in “park.”

• Add a requirement for an external alert that the driver and bystanders can hear when the vehicle is not in “park” and the driver exits the vehicle.

• Add a requirement for an external alert that sounds when the driver leaves a keyless ignition vehicle with the propulsion system active.

• Add new test procedures for the new requirements.

We believe that the benefits of the new requirements proposed today, while not yet quantifiable on a national level, will reduce the risk that drivers will misuse these new keyless ignition systems and therefore also reduce:

• Crashes, injuries and deaths resulting from a driver's inability to shut down a moving vehicle;

• Rollaway incidents due to drivers failing to place the gear shift control in “park” before shutting down the propulsion system, and leaving the vehicle; and

• Incidents of carbon monoxide poisoning due to drivers inadvertently leaving a vehicle running or with its propulsion system active in an enclosed space, such as a garage adjoining a home.

We believe that taking precautionary action now, before these non-standardized systems become more widely available, will be beneficial to highway safety. Production of vehicles with these systems has grown from about 5,000 vehicles in model year 2002 to over 1,2 million in model year 2008. We believe we will accrue benefits by establishing a consistent experience for the users across all vehicles and a consistent way to turn off the propulsion system whether the vehicle is moving or not. This not only simplifies training new drivers, but also training drivers new to keyless ignition vehicles, and reduces the stress and confusion relating to fundamental differences in how one operates a vehicle. This is especially important in vehicles that provide less obvious cues as to the state of the engine and the starting system. If the measures we propose in this notice prevent just one serious injury over three years, the rule will be cost beneficial. We believe the countermeasures we have proposed can reasonably be expected to have their intended effect based on similar requirements already in place in FMVSS No. 114 and other standards and in common automotive practice. For example, the warning to drivers to take their keys with them when they leave their vehicles (currently in FMVSS No. 114) and the threshold warning device for platform lifts (currently in FMVSS No. 403) are effective alerts, and we see no reason the new alerts proposed here should be less effective. The common automotive practice of the rotating ignition switch, combined with a physical key, has standardized the engine shut down procedure before the advent of the new electronic convenience controls. We believe standardizing the operation of these new controls, combined with the new alerts, will have the same effect. We believe these new requirements are especially worthwhile considering what we believe to be minimal costs to implement them.

Today, in the vehicles with keyless ignition systems, the great majority use push-button type switches. Some require a momentary tap, some require longer hold times, and some use different hold times to affect different functions. The countermeasure for driver confusion over shutting down a moving vehicle is to require that the switch that turns off the propulsion system work consistently, whether the vehicle is moving or not. From our knowledge of the operation of current designs, we believe that our proposed 500 millisecond hold time is well within the functional range of the switches currently in use. The only change necessary, in most cases, will be in the additional software coding. Thus, we believe there will be little incremental cost for changing the behavior of the keyless ignition control. There will be costs associated with testing the new software for correct operation.

We are proposing to require one new internal driver alert and two new external driver alerts. Some models already use some version of these alerts and other alerts are already required by FMVSS No. 114. In most cases, manufacturers need only reconfigure existing sound generating systems to engage under the right circumstances. For this reason, we believe the warning cues proposed here have little cost associated with their implementation.

Because the incremental cost for equipping every vehicle in the fleet would be very small, it follows that regardless of the number of vehicles needing a countermeasure, the cost to equip the entire fleet of keyless ignition vehicles would be similarly small.

If the proposed changes in this NPRM are made final, NHTSA proposes a lead time of two years from the next September 1 after a final rule is published in the Federal Register . We believe that this lead time gives vehicle manufacturers ample time to implement the new requirements in the normal course of vehicle model updating at minimal cost.

Under 49 U.S.C. Section 30111(a), NHTSA (by delegation from the Secretary of Transportation) is directed to prescribe Federal motor vehicle safety standards (FMVSSs). Section 30111(a) also states that “Each standard shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms.” This subsection was the statutory basis for the original promulgation of FMVSS No. 114, Theft protection and rollaway prevention (49 CFR Section 571.114) and is also the basis for this proposal.

Federal Motor Vehicle Safety Standard No. 114, specifies vehicle performance requirements intended to reduce the incidence of crashes, injuries and fatalities resulting from theft and accidental rollaway of motor vehicles. The purpose of this standard is to decrease the likelihood that a vehicle is in a crash as a result of theft, or accidentally set in motion. FMVSS No. 114 applies to all passenger cars, and to trucks and multipurpose passenger vehicles with a gross vehicle weight rating (GVWR) of 4,536 kilograms (10,000 pounds) or less. However, it does not apply to walk-in vans. 2

To minimize crashes involving stolen vehicles, FMVSS No. 114 specifies at S5.1.1 that each vehicle must have a starting system which, whenever the key is removed from the starting system prevents: (a) The normal activation of the vehicle's engine or motor and; (b) either steering, or forward self-mobility, of the vehicle, or both. To deter theft, Section 5.1.3 requires an audible alert to the driver if the driver's door is opened and the key left in the starting system. This serves as a reminder to the driver to always take the key. It is further specified at S5.1.4 that if a vehicle is equipped with a transmission with a “park” position, the means for deactivating the vehicle's engine or motor must not activate any device installed to prevent steering or forward self-mobility, unless the transmission is locked in the “park” position.

To minimize rollaway in vehicles equipped with transmissions with a “park” position, the standard specifies in S5.2.1 that the starting system must prevent key removal unless the transmission or gear selection control is locked in “park” or becomes locked in “park” as a direct result of key removal. The standard further specifies at S5.2.2 that the vehicle must be designed such that the transmission or gear selection control cannot move from the “park” position, unless the key is in the starting system. 3

FMVSS No. 114 includes a specific definition of “key”: “means a physical device or an electronic code which, when inserted into the starting system (by physical or electronic means), enables the vehicle operator to activate the engine or motor.” For purposes of FMVSS No. 114, “key” means both the traditional physical key and codes that are electronically transmitted by a fob, plastic card, or a similar device. The electronic code also includes numeric codes entered onto a keypad inside the vehicle by the driver. The standard also includes a definition of “starting system”: “means the vehicle system used in conjunction with the key to activate the engine or motor.”

While the new electronic keyless ignitions systems are currently subject to FMVSS No. 114, NHTSA is aware of emerging safety issues that we believe should be addressed by new requirements specific to these systems.

Keyless ignition systems, as they are commonly called, usually consist of a device carried by the driver, which contains an electronic code that grants access to the vehicle (allows the doors to unlock) and the ignition system. The electronic code is transmitted to the vehicle's starting system without physical contact with the vehicle, other than its presence in the vehicle, and the driver is granted access to start the vehicle's propulsion system, usually by pushing a button or turning a rotary switch. Keyless ignition systems first became available in luxury models but are now migrating to more popular vehicles (for example, the 2011 Kia Sedona minivan has keyless entry and ignition standard on the base model, with a manufacturer's suggested retail price of $24,595). Implementation of keyless ignition differs across models. Circular push buttons are most common, but there are also rocker switches and rotary switches (similar to the familiar ignition switch that is turned with a key). Among the push button keyless ignition systems, there are differences in how these systems turn on and shut off the propulsion system, both while the vehicle is stationary (normal usage) and while moving (emergency situations). There are also differences in alerts given to the driver by different models if the driver does something unsafe while using the system, such as not putting the transmission in “park” before shutting down the engine, or leaving the vehicle while the propulsion system is still active.

In this section, we describe alleged incidents, and those that we have investigated, resulting in crashes, injuries and fatalities, involving vehicles with electronic keyless ignition systems. We also describe how we believe such incidents may have occurred.

The Office of Defects Investigation (ODI) is the office within NHTSA responsible for conducting defect investigations and administering safety recalls in support of NHTSA's mission to improve safety on our nation's roadways. One important means by which ODI discovers vehicle safety-related defects is self-reporting by vehicle owners. By relating the information over a toll-free hotline number (1-(888) 327-4236, TTY for the hearing impaired: 1-(800) 423-9153) or filling out an on-line or paper questionnaire, the Vehicle Owner's Questionnaire (VOQ), vehicle owners can provide complaint information that is entered into NHTSA's ODI vehicle owner's complaint database. This information is used with other complaints and information to determine if a safety-related defect trend exists.

Traditionally, the data NHTSA uses for rulemakings are from data bases of police- or NHTSA-investigated crashes: the Fatality Analysis Reporting System (FARS), the National Automotive Sampling System Crashworthiness Data System (NASS-CDS) and the National Automotive Sampling System General Estimates System (NASS-GES). Today's discussion is based on driver complaints to ODI through the VOQ because in this case the crashes or incidents of interest either cannot be identified from data elements available in those data bases (crashes involving a vehicle speeding out of control, such as with a stuck accelerator pedal) or they will not be present in those data bases in the first place because they do not involve a motor vehicle in transport (rollaways and carbon monoxide poisoning). The relatively new “Not-In-Traffic Surveillance” (NiTS) data base was searched for these incidents, but no keyless ignition vehicles were found. Keyless ignition is an item of equipment that is still not widely used on vehicles, constituting less than 10 percent of vehicles sold, so it is not surprising that none of these vehicles are in the relatively new NiTS.

We recognize that there are many caveats to using VOQs as a data source, among them are:

• The crashes are not randomly selected.

• VOQs are self-reported and for most there is no follow up investigation as to what actually happened in the incident.

• There is no analysis of the root cause of the crash so we cannot confirm if the type of ignition switch contributed to crash causation.

• We have no information on other possible contributing factors in these crashes.

• There may be many more incidents that were not reported to NHTSA because the driver did not know how or where to make the complaint. 4

However, an accumulation of VOQs from drivers stating a similar problem with a particular vehicle system points to emerging safety issues with new systems, which is what we are trying to document and correct with this precautionary proposal in a manner that has very little cost. We request comment on the use of vehicle owners complaints as a basis of this proposal.

On August 28, 2009, there was a passenger car crash near San Diego, California that resulted in the deaths of four people. The vehicle at issue had a keyless electronic starting system, including a start/stop control (a push button) on the front dashboard. This control would stop the engine immediately when the vehicle was stationary, but the driver needed to depress the “stop” control for as long as three seconds to stop the engine when the vehicle was moving. NHTSA's Office of Defects Investigation inspected this vehicle and crash site on September 3, 2009 and a report was filed on September 30, 2009. 5 The investigator noted the following:

• The vehicle was a loaned Lexus ES-350 traveling at a very high rate of speed that did not stop at the end of Highway 125.

• The driver was a 19 year veteran of the California Highway Patrol.

• The cause of the crash was “very excessive speed.”

• The accelerator pedal had apparently been entrapped by the all-weather floor mat that was not the correct mat for the vehicle.

• Among the “other significant factors” was:

In July of 2007, another fatal crash occurred in California involving a 2007 Toyota Camry equipped with keyless ignition experiencing an unwanted acceleration which hit a Honda Accord, killing its driver. This crash was investigated by Dynamic Science, Inc., under contract to NHTSA's Special Crash Investigation Division. The report on this crash notes,

NHTSA's Office of Defects Investigation has received complaints, through the submission of Vehicle Owner's Questionnaires (VOQ)  8 submitted to the agency, of similar situations in which the driver attempted to shut down the propulsion system in a runaway vehicle with keyless ignition. Two examples are:

We can conclude from these VOQs and others like them that:

• Drivers will attempt to stop a vehicle in a wide open throttle event by using the engine stop control.

• Drivers expect the engine stop control to function the same way every time it is used, regardless of the vehicle state, stationary or moving.

• It is reasonable to link the driver's inability to shut down the moving vehicle to the difference between the expectation of how the control would work in this situation and the reality of how it actually does function. 9

When shutting down a stationary vehicle (with a transmission with a “park” position) to leave it parked, the driver should first move the gear selection control to “park” and then request propulsion system shut down. Performing these actions in this order will ensure that the vehicle is in “park” before the driver leaves the vehicle. In a vehicle fitted with a traditional key and starting system, this involves moving to “park,” turning the ignition switch to “off” and removing the key. Due to a requirement in FMVSS No. 114, the driver will not be able to remove the key if the gear selection control is not in “park” unless it becomes locked in “park” as a direct result of key removal. To prevent rollaway in the keyless ignition vehicle, the gear selection control should be moved to “park” and then propulsion system shut down should be requested via whatever type of switch is used in the vehicle, most typically a push button. What we find drivers are reporting is that they occasionally (often while distracted) push the switch to shut down the engine without first moving the gear selection control into “park.”  10 If they then leave the vehicle in this condition and it is on any kind of incline it can rollaway, possibly causing injury or fatality to the driver or bystanders or damage to surrounding property. In ODI's VOQ data base, we found six complaints of rollaway and another three complaints in which the drivers realized that the vehicle could have rolled in this condition, but it did not. Below are two examples of rollaway incidents (quoted exactly from the VOQ statement):

There were four VOQs regarding carbon monoxide incidents with keyless ignition vehicles in the past 10 years. Reviewing complaints involving vehicles without a physical key for the propulsion system, we note that drivers occasionally do not turn off the propulsion systems on their vehicles after parking them. One possibility for this behavior is that the driver may not immediately know that the propulsion system has not been turned off. In the following self-reported cases (quoted directly from the VOQs), the drivers only found that they did not turn off the propulsion system because their in-house carbon monoxide detectors were activated after an extended period of the vehicle running in an attached garage:

The following incident was reported by the owner of another motor vehicle manufacturer's product which happens to have a hybrid propulsion system:

Because the above two owners had carbon monoxide detectors in their homes, they were alerted of the problem in time to be able to shut down their vehicle propulsion systems. Others, not as fortunate, may have died because of carbon monoxide poisoning from their vehicles. For example, a September 1, 2010 article in the South Florida Sun-Sentinel.com, reported that Palm Beach County detectives were investigating whether a keyless ignition system on a vehicle that was left running in a garage attached to a house could have led to the death of a 29 year-old woman from carbon monoxide poisoning. (A copy of this article taken from www.sun-sentinel.com is placed in the docket cited in the heading of this notice.)

In response to the above areas of safety concern and concern regarding the myriad different ways manufacturers are implementing keyless ignition features, the Society of Automotive Engineers (SAE) created the Keyless Ignition Subcommittee as a subcommittee of the Controls and Displays Committee, which has worked since early 2009 to develop an SAE Recommended Practice (RP) to standardize the operation of keyless ignition systems. 12 The committee consisted of experts in the study of how humans interact with machines (human factors experts) and designers of keyless ignition systems from auto manufacturers and suppliers. A NHTSA staff person attended the subcommittee meetings, but did not participate in decision making. The resulting RP is based on the subcommittee members' experience with their company's vehicles and systems, knowledge of consumers' comments about the operation of the systems, knowledge of human factors engineering and, in some cases, knowledge of proprietary studies done during the development of their products (actual data was not shared with the group). The RP applies to all passenger cars, multipurpose passenger vehicles (MPVs), and trucks of 10,000 pounds GVWR and under, with automatic and manual transmissions (some provisions apply only to vehicles with automatic transmissions with a “park” position). The RP sets control actuation requirements for starting and stopping stationary and moving vehicles, and requirements in the form of visual or audible alerts to the driver to address leaving the vehicle without putting it in “park” and inadvertently leaving the engine running. NHTSA has used portions of the SAE RP as a foundation for the requirements proposed and explained in the next section.

In order to better address specific safety issues and to be more enforceable, our proposal today differs from the SAE RP on several points:

• The SAE RP has a range of 500msec-2sec for control actuation to stop a moving vehicle, while we propose a 500 millisecond control actuation for all stops regardless of whether the vehicle is moving or stationary.

• The SAE RP has requirements for control actuation to start the propulsion system, while we tentatively conclude that there is, at this time, no safety benefit upon which this agency can regulate propulsion system starting.

• The “Not in Park” alert required by the SAE RP sounds upon door opening, but has no measureable attributes. The internal audible alert we are proposing today sounds at 85dBA (500-3000 Hz) the instant the driver requests engine shut down (in a stationary vehicle) without the transmission in “park” and continues until the gear selection control is moved to “park”.

• The SAE RP requires an unspecified audible or visual external alert if the vehicle is not in “park” and the key code carrying device is not in the vehicle, while we are proposing an external audible alert that sounds at 85dBA, 1 meter from the vehicle, for 1 minute when the vehicle is stationary, the key code carrying device leaves the vehicle, and the vehicle is not in “park”.

• The SAE RP requires an unspecified audible alert if the propulsion system is active and the driver's door is opened, while our proposal is for an external audible alert at 85dBA, 1 meter from the vehicle, for 1 second when the vehicle is stationary, the key code carrying device leaves the vehicle, and the propulsion system is active (either an internal combustion engine is running, or in the case of a hybrid vehicle the propulsion system is in a state that the internal combustion engine could engage when the electric power became depleted over time).

We seek comment on whether our deviations from the SAE RP are appropriate for an FMVSS.

NHTSA requested that human factors experts at the John A. Volpe National Transportation Systems Center review the SAE RP to help us make our proposal more specific in addressing the safety issues we have noted in our VOQs. Their report has been placed in the docket for this notice. 13

In this section, we will describe how we propose to amend FMVSS No. 114 so that the safety issues described in Section III. Safety Need for Proposed Changes to FMVSS No. 114 may be mitigated.

Based in part on NHTSA's ODI VOQ data, we are proposing regulatory text for addressing the following three types of safety related problems: (1) The driver's inability to shut down a moving vehicle in an emergency because the driver may be unfamiliar with the fact that the shut-down process is different in a moving vehicle than in a stopped vehicle. This situation may lead to a crash. (2) The possibility that the driver will walk away from a vehicle which is not locked in “park” because the driver is able to shut off the vehicle propulsion system without first putting the transmission in “park.” This results in a greater likelihood that the vehicle will roll away on its own. (3) The possibility that the driver will walk away from a vehicle whose propulsion system has been unintentionally left active (even though the driver may have placed the transmission in “park.”). If the vehicle is in an enclosed garage connected to living quarters, this situation may result in carbon monoxide poisoning of persons in the dwelling; if outdoors, this increases the possibility of vehicle theft and a subsequent crash.

As the earlier incidents related from the VOQs have shown, in many ignition systems that don't use physical keys, the driver may not know whether s/he has turned off the vehicle propulsion system.

In this NPRM, NHTSA proposes additional requirements for vehicles using keyless ignition systems because, unlike systems which use the traditional physical key, the start/stop process on vehicles that use electronic codes as keys are not standardized across manufacturers. In particular, if a push-button type control is used, the amount of time the start/stop control must be pressed differs not only among manufacturers, but also on the same vehicle, depending on whether the vehicle is started from a stopped position, stopped while the vehicle is in motion, or whether the vehicle propulsion system is being turned off while the vehicle is stopped. Standardization of controls teaches drivers how the controls will operate and ensures that drivers' expectations about those operations are met.

The problem presented by the lack of standardization is exacerbated by the fact that electronic keys lack many of the visual and tactile cues about the status of the vehicle's propulsion system that are available to drivers when using traditional physical keys. In a system using the physical key, the driver knows from the angle of the key in the ignition whether the vehicle is in “lock,” “accessory,” “start,” or “run.” Also, the key will not release from the ignition switch unless the transmission is in “park.” The keyless ignition system provides no such physical cues to the driver.

The requirement for a visible indication of transmission position comes from FMVSS No. 102, Transmission shift position sequence, starter interlock, and transmission braking effect. S3.1.4.1 requires that if the transmission shift position sequence includes a “park” position, identification of shift positions, including the positions in relation to each other and the position selected, shall be displayed in view of the driver whenever: (a) The ignition is in a position where transmission can be shifted; or (b) the transmission is not in “park.” Despite this visual cue that the transmission is not in “park”, some drivers of vehicles equipped with keyless ignition systems, especially when distracted or unfamiliar with the operation of the vehicle they are driving, leave their vehicles without ensuring the transmission is in the “park” position. They do so because they do not have the tactile cue of being unable to remove the key unless the transmission or gear selection control is locked in “park.”  14 Such actions result in a risk that the vehicle will roll away of its own accord.

We note that the current title of Standard No. 114, “Theft protection and rollaway prevention,” may be made outdated and not inclusive if the proposals described in this notice were made final. However, a title that is fully descriptive of all the purposes served by the standard may be unwieldy. We seek comment on the need to update the title and ask commenters to suggest a new title if they believe a change would be necessary or beneficial.

As mentioned in the Background section of this NPRM, FMVSS No. 114 already contains definitions for “key” and “starting system” which are inclusive of systems that use electronic codes without a physical key to allow the driver to start the vehicle. However, we are proposing the addition of one definition specific to keyless ignition systems:

This key code carrying device is typically called a “key fob” by consumers. It carries and transmits the electronic code to the vehicle that gives the driver permission to start the vehicle. The electronic code carried in the device is the “key.” The device is not the “key.” This new definition for key code carrying device is based on that used in the SAE Recommended Practice discussed in Section IV above. 15 We propose adding “without physical connection (other than its presence in the vehicle) between the device and the vehicle,” to SAE's RP language to differentiate these devices from physical keys which also carry a chip containing an electronic code as part of a theft deterrent system. These physical keys must be inserted into the ignition switch of the vehicle and the key is used to turn the switch. Our proposed definition is intended to specifically exclude any key which must be physically inserted into any part of the vehicle each time the driver desires to start the propulsion system. If a key must be inserted into the vehicle we consider it to be a physical key, regardless of whether or not it also contains electronic components which communicate with the vehicle intended to identify this particular key as belonging to this particular vehicle ( i.e., for theft prevention purposes). Further, our proposed definition of key code carrying device (KCCD) is not intended to exclude a device which otherwise would be a KCCD simply because it occasionally must have physical contact with the vehicle to recharge the battery in the KCCD or because the vehicle manufacturer provides a place where the driver may insert the KCCD if s/he chooses for the convenience of providing a place to keep the device while driving. We note that the primary attraction of these keyless systems appears to be that the driver need not handle a key to access and start the vehicle. We seek comment on whether our proposed definition is specific enough to (a) Exclude devices that we would consider physical keys—they must be inserted to start the vehicle, and (b) include devices which may be inserted to charge a battery or for driver convenience, but do not need to be inserted for normal vehicle operation. We request comment on how the definition of KCCD could be improved to clarify these points.

At this time, we are not proposing to change our definition of “key,” which provides that for keyless ignition systems, the electronic code, not the physical device carried by the driver, is the key. We note that NHTSA's definition of the code as the key is long-standing. It was first articulated in a letter to Mr. Stephen Selander of General Motors in May of 1992. 16 Further, in August of 2005 we published a Notice of Proposed Rulemaking which, among other things, proposed the current definition of “key.” There were no comments which disagreed with our definition of “key” with regard to keyless ignition systems at that time and we finalized that rulemaking in April of 2006. 17 However, we acknowledge that consumers may think of the key code carrying device as the key and that some manufacturers do refer to this device as a key in their consumer literature, so there may be some confusion on the part of consumers as to what is actually the key. Therefore, we seek comment on whether we should revise our definition of “key” and if so, what that definition should be and how we should differentiate between the device the driver carries and the code that actually allows the vehicle to start. Changing the definition of “key” may change the interpretation of what it means for the key to be removed from (S5.1.1) or inserted into the starting system (S5.1.3).

In addition, we are proposing to amend the definition of “starting system.” At present, “starting system” is defined as: “means the vehicle system used in conjunction with the key to activate the engine or motor.” In this NPRM, we propose to amend the end of the “starting system” definition to state: “* * * activate the engine, motor, or other system which provides propulsion to the motor vehicle.” We are proposing this clarification so that it is explicit that FMVSS No. 114 applies to any propulsion “starting system” available in motor vehicles today, or at some point in the future.

We are proposing to add a second definition, “stop control means the device used by the driver to deactivate the engine, motor, or other system which provides propulsion to the motor vehicle.” In most vehicles available today, this control is a push button switch, but this definition is not limited to push button switches.

As we have seen in the quoted VOQs, drivers recognize the need and desirability of shutting down the engine in a moving vehicle when they experience an event in which the acceleration of the vehicle does not seem to be under their control. The VOQs also point out that drivers are stymied in their efforts to shut down the engine in a moving vehicle by the fact that when the vehicle is moving the shut down procedure they are used to in every day operation does not work. To remedy this safety issue, NHTSA proposes to standardize the length of time the driver must press on a “stop” control in order to stop a vehicle, whether moving or stationary. At S5.4.2.1(a), we propose that for vehicles equipped with propulsion system stop controls that are activated by the driver pressing on the control, the vehicle's propulsion system must stop only after the control has been depressed for more than 500 milliseconds. The 500 milliseconds time is based on SAE Recommended Practice J2948 Keyless Ignition Control Design (January 2011). Five hundred milliseconds is the lowest time specified by the Recommended Practice for engine shut down in a moving vehicle (the RP has a range of 500 milliseconds to 2 seconds, NHTSA believes that standardization is not achieved by allowing a window of operation).

We are proposing to regulate only the operation of controls that are pushed because we believe that this covers the great majority of stop controls manufactured today (a circular push button) or contemplated for the future (pressing or touching a portion of a display screen). However, we note that other controls, such as rotary knobs and rocker switches  18 have been used in keyless ignition systems in the past. We seek comment on what other controls are used or contemplated and whether there is a safety need to regulate the actuation of all types of stop controls (not just those that are pushed) and how that might be accomplished. NHTSA seeks comment on whether the language of S5.4 needs to be more specific as to the point at which the 500 msec time begins and what that more specific language would be. When offering suggestions, commenters should keep in mind that there are several different types of switch designs currently available and that could become available that would be subject to this standard.

NHTSA understands manufacturers implemented the practice of designing keyless ignition systems to shut down differently while the vehicle is moving than while stationary to help prevent inadvertent propulsion system shut down, i.e. a situation in which the driver reaches for a different control, accidentally bumps the engine off control and as a result experiences an unintended, unexpected engine shut down, which can create a hazardous situation. However, different times for different modes of operation (for example, a light tap to start or stop a parked vehicle and several seconds to turn the propulsion system off while the vehicle is in motion) result in the driver experiencing an unexpected result when using his accustomed tap motion to request engine shut off (in a stationary vehicle). The drivers' accustomed tap motion does not have the expected effect in a moving vehicle in a panic situation. As previously discussed, this safety issue was identified in the VOQs by and NASA NESC in its review of UA incidents. NHTSA believes that requiring the driver to use the same action to request engine shut down in all cases should result in the safety benefit of drivers' ability to shut down a moving vehicle without the necessity of knowing or remembering a separate motion. We have chosen to propose the 500 millisecond control actuation time believing it will be long enough to guard against inadvertent shut down, while also short enough for drivers to tolerate for everyday normal stationary shut down. We ask for comment on whether this time is too long or too short and whether the danger of inadvertent shut down is that much greater than that of an inability to shut the propulsion system off in the event of a stuck throttle, engine fire, or other emergency situation. Please provide data on this risk comparison. We also believe that the instances of inadvertent shut down can be mitigated by other means, such as better control or switch location, which will not inadvertently get in the way of the driver's wrist, arm, bracelet, or other foreseeable obstruction and ask for comment on this facet of vehicle design.

In our proposal, the time between when the control actuation starts the shut down process (500 milliseconds) and the time the engine must be stopped (1 second) allows for the signals to be sent and acted upon by the vehicle to bring the engine to a stop. We seek comment on this length of time and the problem of engine inertia working to keep the engine running when the vehicle is moving. We propose that the test procedures for compliance with this standard will be conducted on a level surface.

We have proposed a requirement that once the propulsion system of a moving vehicle is shut down, any restart of the system must be initiated by the driver by actuation of the engine start control. This is to prevent automatic restart by any vehicle system, such as idle-stop technology, when the driver has shut down the engine in an emergency situation.

In developing this NPRM, we considered whether to make all control actuations the same, 500 millisecond hold for starting and stopping the engine under any condition, to emphasize to the driver that this control functions the same under all conditions. However, we understand that drivers are so anxious to get started as soon as possible that they would not tolerate a wait time as long as 500 milliseconds to start the engine. We have seen examples of vehicles in which the manufacturers have designed their systems such that if the driver “taps” the start control (as little as 60 milliseconds) the vehicle will start. After careful consideration, we have tentatively decided that requiring all stops to be the same accomplishes the goal of standardizing the propulsion stop function without inconveniencing drivers in the start mode and that there is little additional safety benefit to be gained by regulating the starting of the propulsion system. However we note that more time spent in the starting up process would provide more time for systems like a rearview camera system to boot up and begin functioning before rearward movement begins. We ask for comment on this tentative decision.

In S5.4.1.2(b), we are not proposing to allow auto-shift to “neutral” in lieu of engine shut down because we believe, based on the VOQ data, that when drivers actuate the engine “off” control or switch, they expect the engine to shut off. An engine which continues to run could confuse the driver and cause unwanted actions by the driver. We are aware that some manufacturers currently do shift the transmission to “neutral” when the driver requests engine shut down while the vehicle is moving. These manufacturers believe that if the engine is shut down while the vehicle is moving, the driver's ability to control the vehicle will be hampered by the resulting loss of power steering and power braking. In the same vein, we are not requiring auto-shift to “neutral” because, in addition to the issue of driver expectation, we know requiring this feature would require all vehicles to be fitted with electronic transmissions and this would be extremely costly. We note that drivers have dealt with this loss of control when shutting down conventionally keyed vehicles for many years. If we were to determine that loss of power control when shutting down the propulsion system of a moving vehicle is a safety concern, we believe we would need to address that safety issue for all vehicles, not just those fitted with keyless ignitions.

We ask for comment on whether the safety problem associated with loss of power assist to braking and steering is greater than the safety risk of the driver believing that s/he has requested the engine to shut down and has instead experienced an unexpected action by the vehicle. If we were persuaded by comments to the NPRM on this issue that allowing auto-shift to “neutral” is a countermeasure that meets the need for safety, the regulatory language proposed today would be altered so that S5.4.1.1(b) would read “The propulsion system must shut off, or remove motive power from the drive wheels, within 1 second after the control has been depressed for more than 500 milliseconds.” The phrase “or remove motive power from the drive wheels,” is not part of the current proposal. We also note that we have seen examples where the manufacturer has chosen not to allow the vehicle's propulsion system to shut down at all while the vehicle is moving. If today's proposal is made final, these systems would not be allowed. We note that as early as 1997 we voiced our concern about the fact that such systems would not meet driver's expectations. 19

We have also considered allowing a vehicle to enter a “limp home” mode instead of shutting down the propulsion system when shut down is requested in a moving vehicle. Such an operating mode would allow the driver to finish his or her trip at some reduced maximum allowable throttle output, rather than requiring the driver to pull over to the side of the road (encumbered with the loss of power assist to braking and steering) as would be the case with full engine shut down. While this mode has the advantage of allowing the driver to continue his or her trip, it has all the disadvantages of the auto-shift to neutral listed above. It is also uncertain whether whatever vehicle malfunction was causing the excessive throttle condition to which the driver was initially responding (by requesting shut down) would also affect the “limp home” mode. For these reasons, we have tentatively decided not to allow this mode of operation, but we ask for comment on whether any manufacturer is currently using such a “limp home” mode when propulsion shut down is requested in a moving vehicle and what are the possible advantages and disadvantages of such an operating mode.

Finally, we note that SAE J2948 specifies stop conditions at S4.3.2.1., ” Stop Conditions Met.” Among other matters, S4.3.2.1 states that the vehicle shall also exit the run mode after multiple actuations (defined at S3.7.3 as two or three actuations in a row) of the keyless ignition control system. We do not believe that NHTSA needs to include this requirement in our proposal since we believe that standardizing propulsion control shut down to a 500 msec hold obviates the likelihood that the driver will attempt to shut down the propulsion system using multiple short presses. We believe this has happened in current vehicles because the “everyday” shut down procedure is a momentary press of the control and the driver uses that momentary press in the moving condition also. When it does not work, s/he tries it again. S/he is not intentionally pressing multiple times because s/he knows the shut down procedure is different while the vehicle is moving, s/he's just repeating what s/he thought should work. 20 If today's proposal were made final, the driver will experience no need for multiple control actuations; the propulsion system will have deactivated within the time period that the driver expects from normal use.

At present, S5.1.3 of FMVSS No. 114 specifies that an audible warning must be activated when the key is in the ignition system and the door closest to the driver's designated seating position is opened. There are three exceptions to this requirement: (a) After the key has been inserted into the starting system, and before the driver takes further action; (b) if the key is in the starting system in a manner or position that allows the engine or motor to be started or to continue operating; or (c) for mechanical keys and starting systems, after the key has been withdrawn to a position from which it may not be turned.

In this NPRM, we propose to limit the exclusion at S5.1.3(b) to vehicles with mechanical keys and starting systems. The original logic of S5.1.3(b) ( i.e., applying to motor vehicles with all types of keys and starting systems) was that if the engine were running, then the driver must have intentionally left the key behind. However, with keyless ignition systems, it is not obvious to the driver that s/he has left the “key” (the electronic code) behind and also it may not be obvious that the engine or other propulsion system is running.

Therefore, if this NPRM were made final, on vehicles with electronic keyless ignition systems, when the “key” is left in the starting system in a manner or position that allows the engine, motor or other propulsion system to be started or to continue operating, the audible warning currently excluded by S5.1.3(b) must be activated when .the driver's door is opened. S5.1.3 does not specify the volume or duration of this audible warning. Many manufacturers currently choose to sound this alarm regardless of whether they use a physical or electronic key in the vehicle.

In this NPRM at S5.4.2 Warnings to driver exiting a vehicle with the gear selection control not in “park” for vehicles equipped with a “park” position, we propose two new audible alerts of no less than 85 dBa between 500-3000 Hz. The first, S5.4.2.2, must sound if propulsion shut down is requested, the gear selection control is not in “park,” and the vehicle is moving at less than 15 km/h (9.3 miles per hour). We propose that the alert must continue until the gear selection control is placed in “park.” The gear selection control must be able to be moved to the “park” position without having to restart the propulsion system.

We are proposing a loud audible warning as opposed to allowing the manufacturer a choice between an audible or visual warning (as allowed by the SAE RP) for two reasons. First, FMVSS No. 114 currently requires an audible warning as discussed above, so drivers are accustomed to this type of warning. Secondly, we believe that a visual alert, such as a written or pictographic message to the driver in the message center of the dashboard (currently used in some vehicles), is too easily ignored by the driver. The alert must be loud to guarantee a driver's response to this very dangerous situation. The sound level proposed, 85 dBA between 500-3000 Hz, comes from the threshold- warning alert required in FMVSS No. 403, Platform lift systems for motor vehicles. We seek comment on whether the test method proposed today in S6.3.1 is the best method to measure the sound level and whether the sound level is too loud or not loud enough (for this requirement and all other sound levels proposed in this NPRM).

The test procedure proposed at S6.3.1 uses the height of a seated 50th percentile male dummy to establish the height at which sound levels are measured. The proposal is that the sound be measured 740 mm above the driver's seat. This height was derived from the fact that the seated height of the 50th percentile male dummy (to the top of the head) is 909mm and the shoulder height is 565mm above the seat. The midpoint of the difference between those two distances is 740mm. 21

An alternative to this loud warning sound could be an audible voice command telling the driver exactly what is wrong (for example, “Danger. Not in `park'.”) and how to remedy the situation (“Move gear selection control to `park'”). This solution may be more helpful to the driver, but we do not know if most vehicles currently have the capability for voice commands or if such capability could be added at very low cost. We know that such artificial human voice alerts have been used in some vehicles in the past to alert drivers and passengers to potentially harmful conditions, e.g. “door ajar” or “turn off headlights.” We have the following questions regarding this alternative form of alert:

• Is a voice command preferable to an unspecified loud audible warning?

• How loud should such a voice alert be?

• Should a voice alert be required to be in English?

• Should it be required to be able to be programmed to the driver's choice of language?

• Should NHTSA specify the exact words to be used and if so what should those words be?

• Are most vehicle manufacturers capable of providing such a voice alert and at what cost?

We propose to use the phrase “the vehicle is moving at less than 15 km/h” in lieu of “the vehicle is stationary.” We believe that most currently available wheel speed sensors are not capable of determining speeds of 0. The 15 km/h figure is also that referenced in the final rule establishing the electronic stability control system. 22

The second alert, at S5.4.2.3, must sound outside the vehicle if the driver does not respond to the internal alarm and continues to exit the vehicle without placing the transmission in “park.” We propose to determine that the driver has left the vehicle by requiring the vehicle to sense the absence of the KCCD. The proposed regulatory text is:

We seek comment on the ways in which vehicles manufactured today sense the absence of the key code carrying device. If the system does not already incorporate such a sensor, what would be the cost to add it? We realize that sensing the presence or absence of the KCCD is not an ideal substitute for sensing the presence or absence of the driver, for a number of reasons, primarily that the driver may not take the KCCD with him or her, in which case the warning will not sound and the vehicle will be left in an unsafe condition—vulnerable to rollaway and theft. (Sensing the absence of the KCCD is the approach used in SAE J2948.) The driver may be especially likely to leave the KCCD in the vehicle when the vehicle is in his or her own garage or driveway. As explained in the next section, we also seek comment on whether a one-second audible warning to the driver leaving a vehicle with the propulsion system operating sufficiently reduces this risk.

One way of sensing the driver's presence is to do it directly, such as is done for the right front passenger for the purpose of determining whether or not to deploy an air bag in a crash. However, we do not believe that most, if any, manufacturers currently have such sensors in the driver's position. We estimate that adding some sort of sensor to indicate the driver has left the vehicle would cost between $4 per vehicle for a seat belt sensor, and $12 per vehicle for a weight sensor in the driver's seat. We request comment on how such sensors might be used to indicate the presence or absence of the driver, the accuracy of our cost estimate, and whether this cost is commensurate with the safety risk we are attempting to reduce.

The sound level required, again 85 dBA between 500-3000 Hz, is measured at 1580mm  23 above the ground, one meter from the vehicle (S6.3.3). We also propose that the alarm discontinue after one minute (or until the gear selection control has been moved to “park”), as after that time, we believe the alarm has been ignored by the driver and will be ignored by any bystanders. We seek comment on the duration of the alarm, on whether the alarm should be continuous, and on the test method proposed at S6.3.2. We also seek comment on whether such an alarm requirement can be readily confused with the antitheft alarm system that is already standard on many passenger motor vehicles.

In S5.5 Warning to driver exiting a vehicle with the propulsion system operating, we propose to require an audible alert to sound outside the vehicle if the propulsion system is running, or is capable of starting without reintroduction of the electronic key code into the starting system, the door closest to the driver's designated seating position is opened, and the KCCD is not in the vehicle.

This is a proposed countermeasure for those cases in which a driver is unaware that s/he has inadvertently left the vehicle running. We are proposing an alert time of one second because a person walking at an average pace of three miles per hour will cover three feet in less than one second. After that time and distance, we assume that the driver has left the vehicle running intentionally, either because someone else is in the vehicle, to facilitate vehicle repair, or for some other reason. The alert would sound for one second (rather than one minute, as the alert for leaving the vehicle not in “park” would sound), because leaving the vehicle with the propulsion system on is more commonly intentional on the part of the driver, and less immediately risky to bystanders. If it sounds for longer than a second, the alert would also tend to annoy bystanders and serve no purpose. However, we seek comment on whether one second is long enough for an alert that the driver has left the vehicle with the propulsion system active.

We recognize that there is a competition between our desire to alert the driver to the fact that s/he has inadvertently left the vehicle with the propulsion system active and the potential to create a nuisance alert when the driver has left the vehicle running intentionally. Most of these potential nuisance situations will be alleviated if the driver takes the KCCD with him or her. We also recognize that there are occasions when a driver may leave the vehicle running while a passenger remains in the vehicle. The required alert then becomes a nuisance to the passenger, but this is very brief—one second. We seek comment on whether this warning would be necessary if the manufacturer could determine that seating positions other than the driver's are occupied. We know that most vehicles are capable of determining if the right front passenger position is occupied for purposes of complying with FMVSS No. 208, Occupant protection. Would manufacturers value the ability to reduce passenger annoyance equal to the cost of adding software to prevent this alarm if the seat were occupied, if given the option?

As with the above section on the “not in park” alerts we seek comment on whether simulated voice alerts containing a warning (such as “Propulsion system active”) and how to remedy the situation ( e.g. “Turn off propulsion system”) would be an effective alternative to the proposed alert and if manufacturers are capable of installing this type of alert and at what cost.

We also recognize that this requirement will not have the intended result of preventing vehicle theft or death due to carbon monoxide poisoning if the driver does not take the KCCD from the vehicle. A driver may be especially prone to leave the KCCD in the vehicle when the vehicle is locked in the garage at home. This is another reason that we are seeking comment on the availability and cost of sensors that would indicate the presence or absence of the driver as discussed in the last section.

As will be explained later, we considered requiring the engine to shut down after a specified period of time, however, there are many situations in which a driver intends to leave some electrical system or the engine in the vehicle running without his or her presence. An example is leaving a passenger with heat or air conditioning on while the driver runs an errand, or keeping the engine running to prevent the inability to restart the engine in a very cold climate. After reviewing many possible scenarios and careful consideration, we decided we could not propose a time period for shut down that would cover all possible reasons consumers would want to leave the propulsion system running in their absence from the vehicle.

In order to ensure that drivers who are so inclined have access to information on how the propulsion system in their vehicles operates, normally, and in the event of an emergency, in this NPRM at S5.6, we are proposing to require that manufacturers place in the vehicle's owner's manual, instructions regarding the operation of the control(s) that stops and starts the propulsion system. This proposed language would provide a warning that power assist to steering and braking will be lost in the event the propulsion system is shut down while the vehicle is in motion. We are also proposing that there must be an explanation of how to handle the vehicle safely in the event power assist to steering and braking is lost.

NHTSA has reviewed the available owner's manuals for many manufacturers. As a practical matter, we are not aware of any manufacturer whose manual does not already address this critical safety situation. The proposed language at S5.6 will ensure that this language will continue to be maintained. Nothing in this proposed language should dissuade a manufacturer from adding additional information, if it believes the information would help a driver safely handle the vehicle in the event of an emergency.

We note that NHTSA's proposed language in the owner's manual, if made final, would be a “collection of information” as defined by the Office of Management and Budget at 5 CFR 1320 Controlling Paperwork Burdens on the Public. In this NPRM, we seek public comment on this proposed collection of information. A full description of this proposed collection of information is provided in Section IX Rulemaking Analyses and Notices.

Since we believe that very few drivers actually read the owner's manual, we request comment on whether this proposed requirement (and hence the collection of information) is actually necessary and if manufacturers will continue to provide the instructions for these controls regardless of any requirement by NHTSA to do so.

In the following sections, we will discuss additional measures, other than those mentioned above that we have taken under consideration to address the safety issues raised in this NPRM. We have considered whether each of these measures would meet the need for safety in both keyless ignition systems and systems using the traditional physical key. We are not proposing regulatory text for the following measures and explain why we are not doing so. However, we seek comment on each of them and may adopt provisions relating to one or more of them in the final rule, if it can be demonstrated that they can be incorporated by manufacturers at little cost. Further, nothing in this rulemaking should be construed as prohibitions against manufacturers from voluntarily incorporating these systems in the passenger motor vehicles they manufacture.

NHTSA considered whether to require a kill switch in plain view of the driver that would stop the propulsion system in the event of an emergency. Preferably, this switch would be an eye-catching color, such as red, and would be readily accessible on the instrument panel or other obvious location. Such a switch would, ideally, be used for all stops, not just emergency stops, so that drivers would learn the function and correct use of the switch. For example NHTSA requires such a switch for motorcycles. 24 Boats, personal water craft, and construction equipment and power tools also have such switches.

NHTSA has not proposed regulatory text that would require this kill switch in passenger motor vehicles. Requiring the separate switch would mean adding new equipment to the passenger motor vehicle at issue, thus adding expense to the vehicle and possibly requiring a significant amount of lead time to implement. We cannot at this time determine whether such a switch would be easier for drivers to understand and use in an emergency than a stop control that meets the requirements we are proposing today. We seek comment and data on whether a stand alone stop control would be safer than the combined start/stop control in use now, if the stop control function complied with our proposal.

In thinking about the risks associated with today's keyless ignition systems, NHTSA considered whether we should propose requiring that the driver must first step on the service brake before the propulsion system can be started. This feature is currently available in some vehicles. It addresses the situation in which an unattended child left in a vehicle could play with power windows or other electrical system features to which s/he could have access by actuating a control that works with a simple touch, even in the absence of the KCCD. NHTSA has not proposed regulatory text for this requirement because we cannot estimate this risk at this time.

We also note that on September 1, 2010, the requirement in FMVSS No. 114 for a brake transmission shift interlock (BTSI) took effect. The requirement was mandated by Congress and implemented into FMVSS No. 114 by rulemaking. 25 The new S5.3 Brake transmission shift interlock states as follows:

This S5.3 requirement is intended to prevent children from being able to shift the transmission out of “park” even if the physical key is in the ignition. We believe it also will minimize sudden acceleration by brake/accelerator misapplication because the driver must have his foot on the brake before the vehicle can be shifted out of “park.” It would then take a conscious decision to remove the foot from the brake, and then onto the accelerator, before the vehicle can be set in motion.

A new requirement that the driver must step on the service brake before the propulsion system can be started would extend the length of time the driver's foot must be on the brake ( i.e., because the foot must be on the brake before the propulsion system can be started and then when the driver takes the vehicle out of “park.”) S5.1.4 specifies that the vehicle must be in “park” before the key can be removed, so the stopped vehicle should always begin in the “park” position. The vehicle can only move when the vehicle is taken out of “park.” This is when the driver must step on the brake, before s/he makes a conscious decision to move, forward or in reverse.

As mentioned above, we considered whether to propose specifying, for electronic key systems, the amount of time that the driver must press on the “start” control in order to start the vehicle. We were considering a 500 millisecond time period (the same as the time period we are proposing to shut down the propulsion system). This would indicate to the driver that pushing the control for the same period of time (500 milliseconds) would actuate both stopping and starting, i.e., that the control works the same way at all times. However, NHTSA understands that some manufacturers have received complaints from their customers regarding a perceived lengthy start time (such as 500 milliseconds). To satisfy such drivers, some vehicle manufacturers have designed their vehicles to start at a mere tap on the “start” control, which could be as little as 60 milliseconds.

After carefully considering this issue and the safety issue that would be addressed by such a requirement, NHTSA has decided not to propose regulatory text to specify the length of time the “start” control must be depressed to start the vehicle. We are not aware of any safety issues resulting from a “start” control that has to be pushed for either a too short ( e.g., less than 60 millisecond) or a too long ( e.g., more than two second) period of time.

We have also considered the fact that when the vehicle is started, the transmission position should presumably still be in “park.” Therefore, even if a sudden start of the vehicle propulsion system should startle the driver, the vehicle should not move. Due to the brake transmission shift interlock requirement specified at S5.3, the driver would then need to depress the service brake in order to shift the transmission out of the “park” position to commence driving. The driver decides when to commence driving.

When examining possible countermeasures for the situation in which a driver walks away from a vehicle with its propulsion system active, thereby increasing the risk of theft or carbon monoxide poisoning, NHTSA considered a requirement for an automatic shut-off feature applied to vehicles fitted with electronic key code systems. We are aware that some manufacturers already provide this feature on their passenger motor vehicles. Such manufacturers have determined on their own the appropriate range of time (15 minutes to half an hour or longer) after which the vehicle propulsion system is automatically shut off. We are also aware that some systems that allow the vehicle to be started from a remote location rather than from inside the vehicle (“remote start”) have this feature as well—if the driver does not enter the vehicle after a certain amount of time after having remotely started the vehicle, the propulsion system will shut off.

NHTSA is not proposing regulatory text to require these automatic shut off systems. We have been unable to conclude that there is a specified period of time after which the propulsion system should be shut down to effectively address various scenarios mentioned in VOQs submitted to the agency. There are scenarios, such as leaving pets in the vehicle with the air conditioning or heating system on while the driver shops or is at a restaurant, where an automatic shut off of the propulsion system would have adverse results. It is our understanding that some drivers may stay in their vehicles for hours, for example, to sleep, with the air conditioning or heating system on. For the pet owner or the person staying in the vehicle for an extended period, it would be inconvenient if the propulsion system had to be restarted every 15 minutes or so.

As earlier noted, a consumer submitted a VOQ reporting a carbon monoxide build up situation where the driver parked the vehicle in the garage without turning off the engine, and locked the garage, but left the key fob, or key code carrying device, in the vehicle. Some propulsion systems that automatically shut off do so after they sense that the KCCD has been removed from the interior of the vehicle. In the situation reported in the VOQ, the automatic system would not have shut off the propulsion system because it continued to sense the presence of the KCCD in the vehicle interior.

We believe that the new alert that we are proposing would refocus the driver's attention on the vehicle when s/he is leaving if s/he has inadvertently left the propulsion system active. For these reasons, we tentatively conclude that we do not need to regulate vehicle propulsion automatic shut off systems at this time, however, we request comment on this issue.

We have reviewed vehicles with keyless ignition systems in situations where the driver has forgotten to place the gear selection control in “park” before shutting down the propulsion system and leaving the vehicle. As a countermeasure to rollaway incidents in such situations, we have considered whether preventing the propulsion system from shutting down unless the gear selection control is in “park” would meet the need for safety. Some manufacturers already provide this feature on their passenger motor vehicles. We considered requiring this feature, but have tentatively decided that the internal and external alerts that we are proposing are more appropriate because they alert the driver to the situation rather than masking it ( i.e., not only may the driver not realize the gear selection control is not in “park”, s/he may not realize that the propulsion system has not shut down). This proposed remedy is simpler and more direct and reinforces the message that a driver must put the gear selection control in “park” before requesting propulsion system shut down, just as the inability to remove a traditional key from the ignition if the gear selection control was not in “park” does. We also believe that a strategy of not shutting down a vehicle that is not in “park” may contribute to an increased risk of carbon monoxide poisoning if a driver walks away from a vehicle in this condition. We seek comment on why manufacturers who choose to implement this strategy have done so and what are the perceived benefits. What would be the cost to implement such a strategy? If we were to require such a strategy, should it be instead of, or in addition to, the proposed internal and external alarms?

NHTSA requests comment on the following questions:

1. Is there any safety benefit to keyless ignition (separate from keyless entry) systems over the traditional physical key that is used to turn a rotary switch? Are there cost or weight savings? If there are no safety benefits to these new systems over the traditional key, do their convenience advantages outweigh the new safety risks we are seeing in VOQ submissions?

2. What would be the effects—safety or otherwise—of requiring vehicles to have an ignition system that uses a physical key inserted by the driver, in other words, doing away with current ignition systems that are activated by electronic key codes and touching some sort of switch?

3. Will vehicles with propulsion stop systems that meet the new FMVSS No. 114 requirements proposed in this notice somehow interfere with the functioning of anti-theft systems (immobilizers) that are part of vehicle antitheft systems available today?  26

We believe that the benefits of the new requirements proposed today, while not yet quantifiable, would be a reduction in the risk that drivers will misuse these new keyless ignition systems and therefore a reduction in:

• Crashes, injuries and deaths resulting from a driver's inability to shut down a moving vehicle,

• Rollaway incidents and their accompanying crashes, injuries, and deaths, and

• Incidents of carbon monoxide poisoning due to drivers inadvertently leaving a vehicle running or with its propulsion system active in an enclosed space, such as a garage underneath or adjoining a home.

Although the current information indicates a clear safety problem, it is difficult to quantify the benefits. However, we believe the potential risks justify the costs of this rule. Given that we believe the total costs of this proposal would be relatively small, certainly less than $500,000 a year, for the entire industry, preventing even one serious injury over three years would make the proposed rule cost-beneficial.

We believe that taking precautionary steps now, before these non-standardized systems become more widely available, would be beneficial to vehicle safety. The availability of these systems increases every model year. For example, for the 11 manufacturers for which we have data, production of models with any type of keyless ignition (as standard or optional equipment) increased from 5,000 vehicles in model year 2002 to over 1.2 million vehicles in model year 2008. For models equipped with push button controls as standard or optional equipment, production increased from 5,000 vehicles in model year 2002 to over 1.1 million vehicles in model year 2008. We believe a benefit would accrue from establishing consistent experience for the users across all vehicles. This simplifies the operation of these systems for drivers, reducing the stress and confusion relating to fundamental differences in how one operates a vehicle. This is especially important in vehicles that provide less obvious cues as to the state of the engine and the starting system. We believe the countermeasures we have proposed can reasonably be expected to have their intended effect based on similar requirements already in place in FMVSS No. 114 and other standards and in common automotive practice. For example, the warning to drivers to take their key with them when they leave the vehicle (currently in FMVSS No. 114) and the threshold warning device for platform lifts (currently in FMVSS No. 403) are effective alerts. We see no reason why the new alerts proposed here should be less effective. The common automotive practice of the rotating ignition switch combined with a physical key has standardized engine shut down procedure before the advent of the new electronic convenience controls. We believe standardizing the operation of these new controls, combined with the new alerts, will have the same effect. We believe these new requirements are especially worthwhile considering what we believe to be minimal costs to implement them. We seek comments on this understanding of the benefit of the proposed changes to FMVSS No. 114.

The countermeasure for driver confusion over how to shut down a moving vehicle is to require that the switch that turns off the propulsion system work consistently, whether the vehicle is moving or not. In the vehicles that are in production today and are fitted with keyless ignition systems, the great majority have push-button type switches. Some require a momentary tap, some require longer hold times, and some use different times to affect different functions. From our knowledge of the operation of current designs, we believe that our proposed 500 millisecond hold time is well within the functional range of the switches currently in use. The only change necessary, in most cases, would be in the lines of software coding for the system operated by button. Thus, we believe there would be little incremental cost for changing the behavior of the keyless ignition control. There would be costs associated with testing the new software for correct operation. Those costs would be minimized by the lead time we are proposing below. This lead time would allow changes to be made between and not during model years.

We are proposing to require one new internal driver alert and two new external driver alerts. Some models already use some version of these alerts and other alerts are already required by FMVSS No. 114. In most cases, manufacturers need only reconfigure existing sound generating systems to engage under the right circumstances. For this reason, we believe the warning cues proposed here have very little cost associated with their implementation.

Because the incremental cost for equipping every vehicle in the fleet would be very small, it follows that regardless of the number of vehicles needing a countermeasure, the cost to equip the entire fleet would be similarly small.

We seek comment on our tentative conclusions regarding the costs to manufacturers to implement the changes proposed today.

If the proposed changes in this NPRM are made final, NHTSA proposes a lead time of two years from the next September 1 after a final rule is published in the Federal Register . This means, for example, if a final rule were published on September 2, 2012, the final rule would take effect on September 1, 2015. We believe that this lead time gives vehicle manufacturers ample time to implement the new requirements at minimal cost, especially given that we believe the required changes would be minimal. Manufacturers are already making changes to accommodate the SAE RP. The changes we are proposing today would be minimal changes from that RP. Comments are requested on this proposed lead time.

We are not proposing a phased-in lead time because we believe that the changes we propose today are relatively minor and can be implemented in a two-year period. We tentatively conclude that a phased-in lead time would be an unnecessary complication that would increase cost to the manufacturers and to the agency due to the need to keep track of which vehicle lines are subject to compliance in a given model year. The percentage of vehicles now using keyless ignition and the number of model lines is so small that we believe the proposed changes can be made in the proposed two year lead time without phase in. 27 We seek comment on our tentative conclusion that a phased-in lead time is not necessary.

The agency has considered the impacts of this rulemaking action under Executive Orders 12866 and 13563 and the Department of Transportation's regulatory policies and procedures (44 FR 11034; February 26, 1979). This proposal has been deemed “non-significant” by the Office of Management and Budget. This NPRM includes the following proposed changes to FMVSS No. 114: Establishing a standardized time for pushing a control to stop the vehicle propulsion system and several new warnings to the driver; requesting propulsion system shut down without first moving the gear selection control to the “park” position (for vehicles with a “park” position), exiting a vehicle with the gear selection control not in “park” (for vehicles with a “park” position), and exiting a vehicle with the propulsion system operating.

None of these proposed changes would require the addition of new systems or equipment on existing vehicles. The first proposed change, standardizing the time to push a control to stop the vehicle propulsion system, could be accomplished by reconfiguring lines of software coding for the system operated by the control. The costs involved in reconfiguring the software are minimal. For the proposed driver alerts (one new internal driver alert and two new external alerts), in most cases, manufacturers need only reconfigure existing sound generating systems to engage under the right circumstances. For these reasons, we have tentatively concluded that the warning cues proposed in this NPRM have little cost associated with their implementation.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has considered the effects of this rulemaking action under the Regulatory Flexibility Act. According to 13 CFR 121.201, the Small Business Administration's size standards regulations used to define small business concerns, manufacturers of passenger vehicles would fall under North American Industry Classification System (NAICS) No. 336111, Automobile Manufacturing, which has a size standard of 1,000 employees or fewer. Using the size standard of 1,000 employees or fewer, NHTSA estimates that there are a limited number of small business manufacturers of passenger vehicles subject to the proposed requirements. These small U.S. businesses, which include Tesla, manufacture specialty passenger cars which serve niche markets.

I hereby certify that this proposed rule would not have a significant economic impact on a substantial number of small entities. The basis for this certification is that as earlier stated, if made final, none of these proposed changes would require the addition of new systems or equipment on existing vehicles, and would result in minimal costs to all businesses, small and large. The first proposed change, standardizing the time to push a control to stop the vehicle propulsion system, would incur minimal costs resulting from reconfiguring lines of software coding for the system operated by the control. All the proposed driver alerts can rely on the existing systems that are already required by FMVSS No. 114 or used for other purposes. In most cases, manufacturers need only reconfigure existing sound generating systems to engage under the right circumstances.

NHTSA has examined today's NPRM pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule would 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.”

NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision:

49 U.S.C. 30103(b)(1).

It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.

The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e) Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

Pursuant to Executive Order 13132 and 12988, NHTSA has considered whether this rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.

To this end, the agency has examined the nature ( e.g., the language and structure of the regulatory text) and objectives of today's rule and finds that this rule, like many NHTSA rules, prescribes only a minimum safety standard. As such, NHTSA does not intend that this rule preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by today's rule. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard announced here. Without any conflict, there could not be any implied preemption of a State common law tort cause of action. Nevertheless, we solicit the comments of the States and other interested parties on this assessment of issues relevant to E.O. 13132.

NHTSA has analyzed this NPRM for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.

Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. Before seeking OMB approval, Federal agencies must publish a document in the Federal Register providing a 60-day public comment period and otherwise consult with members of the public and affected agencies concerning each proposed collection of information. In this NPRM, we are proposing a revision to an existing OMB approved collection, OMB Clearance No. 2127-0541, Consolidated Justification of Owner's Manual Requirements for Motor Vehicles and Equipment, for which we are soliciting public comment.

Title: Consolidated Justification of Owner's Manual Requirements for Motor Vehicles and Equipment.

OMB Control Number and Expiration Date: OMB Control No. 2127-0541, approved through May 31, 2012.

Type of Request: Revision of a currently approved collection.

Abstract: In this NPRM, at S5.6 Owner's manual required language, we are proposing that manufacturers must place in the vehicle owner's manual, instructions regarding the operation of the control(s) that stops and starts the propulsion system. This language (which the manufacturers would provide) must contain a warning that power assist to steering and braking will be lost in the event the propulsion system is shut down while the vehicle is in motion. There must also be an explanation of how to handle the vehicle safely in the event power assist to steering and braking is lost.

If this proposed S5.6 language (in FMVSS No. 114) is made final, we will submit a request for OMB clearance of the proposed collection of information in time to obtain clearance prior to the effective date of the final rule.

Description of the likely respondents —Manufacturers of passenger cars, multipurpose passenger vehicles, trucks, and multipurpose passenger vehicles with a GVWR of 4,536 kg or less. NHTSA estimates that there are a total of 21 such manufacturers.

Estimated total annual reporting and recordkeeping burden of the proposed collection of information —The total estimated annual burden (counting all respondents) is estimated at 21 hours. This breaks down to an estimated one hour per manufacturer to write the information to be provided in the owner's manual. 21 times one hour each results in 21 estimated burden hours for report preparation. Because the information to be provided is of a very general nature, NHTSA does not believe that manufacturers must provide separate explanations for each vehicle line or model they produce regarding how to handle a vehicle in the event of an emergency.

There are no proposed recordkeeping requirements associated with this collection of information.

Estimated total annual costs of the proposed collection of information — NHTSA believes all manufacturers already have the engineering staff on hand needed to write the description, which they will accomplish in the regular performance of their duties. The additional few pages in an owner's manual (or, especially, information on a CD ROM) will result in minimal additional costs. NHTSA notes that it is not aware of any manufacturer that is not already providing this information in the vehicle owner's manuals. Therefore, NHTSA believes the cost of complying would be $0.

Comments are invited on: (i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (ii) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions; (iii) How to enhance the quality, utility, and clarity of the information to be collected; and (iv) How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Please provide comments on this proposed collection of information by the comment due date cited in the DATES section of this NPRM, and please reference the docket number cited in the heading of this notice in your comments. Any of the means of comment described in the ADDRESSES section of this NPRM may be used.

Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” For today's NPRM, NHTSA has relied on an SAE Recommended Practice, J2948 Keyless Ignition Control Design (January 2011) for guidance.

With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.

Pursuant to this Order, NHTSA notes as follows.

The issue of preemption is discussed above in connection with E.O. 13132. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.

The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995 this is $141.23 million in 2009 dollars). This NPRM, if made final, would not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $141.23 million annually.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. This rulemaking is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866. However, since this NPRM, if made final, would make more explicit how the stop control on electronic keyless coded vehicles are to be actuated, and would provide warnings to the driver, it should have a beneficial safety effect on children riding in such vehicles.

Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any rulemaking that: (1) Is determined to be economically significant as defined under E.O. 12866, and is likely to have a significantly adverse effect on the supply of, distribution of, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This rulemaking is not subject to E.O. 13211.

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

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

• Are the requirements in the rule clearly stated?

• Does the rule contain technical language or jargon that isn't clear?

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

• Would more (but shorter) sections be better?

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

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

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

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc. ). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78).

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

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

Comments may also be submitted to the docket electronically by logging onto the Federal Docket Management System Web site at http://www.regulations.gov. Follow the online instructions for submitting comments.

Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html. DOT's guidelines may be accessed at http://www.bts.gov/programs/statistical_policy_and_research/data_quality_guidelines/html/introduction.html.

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

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

We will consider all comments received before the close of business on the comment closing date indicated above under DATES . To the extent possible, we will also consider comments that the docket receives after that date. If the docket receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.

You may read the comments received by the docket at the address given above under ADDRESSES . The hours of the docket are indicated above in the same location. You may also see the comments on the Internet. To read the comments on the Internet, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets.

Please note that even after the comment closing date, we will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material. You can arrange with the docket to be notified when others file comments in the docket. See www.regulations.gov for more information.

In consideration of the foregoing, NHTSA proposes to amend 49 CFR Part 571 as set forth below.

In 2009 and 2010, NOAA provided nearly $6 million in funding through Federal grants to the states of Maine, New Hampshire, Massachusetts, and Rhode Island for the express purpose of establishing several “permit banks” of Northeast (NE) multispecies fishing vessel permits. The permit banks were developed jointly by the states and NMFS to help promote the effective implementation of catch share programs in New England and to mitigate some of the potential adverse socio-economic impacts to fishing communities and small-scale fishing businesses. This administrative action would amend the NE Multispecies Fishery Management Plan (FMP) to explicitly define and facilitate the effective operation of state-operated permit banks.

The intent of the permit bank program is for states to use the funding to obtain fishing vessel permits and then to provide the fishing opportunities associated with those permits, in the form of an annual catch entitlement (ACE) and/or days-at-sea, to qualified fishermen. State-operated permit banks are not recognized under the current provisions of the NE Multispecies FMP, and the only entities allocated and authorized to transfer a sector's ACE to approved sectors are other approved sectors. Currently, the only mechanism available for a state-operated permit bank to operate ( i.e. , transfer ACE to fishermen in sectors) is for the permit bank to either join an existing sector as a member or to form a sector with other permit holders. Both of these mechanisms unnecessarily complicate the operation of the state-operated permit banks by imposing redundant administrative requirements.

Amendment 17 would define a state-operated permit bank as a permit depository established through an agreement between NOAA and one or more states, in which Federal grant funds are used by the state(s) to establish a bank of Federal fishing vessel permits so that the fishing access privileges associated with those permits may be allocated by the state(s) to qualifying commercial fishermen and sectors according to criteria to which NOAA and the state(s) have agreed. State-operated permit banks are subject to U.S. Department of Commerce regulations regarding program income, such that any revenue generated by the permit banks may only be used to defray the program costs of operating the permit bank, or must be returned to the Federal Government to reduce the amount of the initial grant award.

Under this amendment, state-operated permit banks would be allocated ACE and specifically authorized to provide that ACE to approved groundfish sectors, and/or to provide days-at-sea (DAS) to vessels for the purpose of enhancing the fishing opportunities available to sector members. State-operated permit banks must comply with the terms and conditions of any applicable Federal grant agreement ( i.e. , a Federal grant award provided to a state for the purpose of establishing, enhancing, or operating a permit bank), as well as meet the requirements specified in a memorandum of agreement (MOA) established with NMFS for administering the permit bank.

Amendment 17 defines state-operated permit banks as separate entities from the groundfish sectors, and establishes certain minimum criteria for these newly defined entities in order to qualify for the streamlined administrative procedures described in this amendment. This amendment is primarily administrative in nature and does not specifically establish or authorize the formation of any state-operated permit banks. Absent this amendment, such permit banks would remain free to form—subject to support and funding from NOAA—and operate to transfer ACE and/or DAS to sectors, according to the terms and conditions placed upon them by any NOAA grant award and/or MOA signed with NMFS, so long as they fully comply with the administrative and procedural requirements for groundfish sectors currently established in the NE Multispecies FMP.

Public comments are being solicited on Amendment 17, including its Environmental Assessment, through the end of the comment period stated in this notice of availability. A proposed rule that would implement Amendment 17 will be published in the Federal Register for public comment. Public comments on the proposed rule must be received by the end of the comment period provided in this notice of availability of Amendment 17 to be considered in the approval/disapproval decision on the amendment. All comments received by February 10, 2012, whether specifically directed to Amendment 17 or the proposed rule for Amendment 17, will be considered in the approval/disapproval decision on Amendment 17. Comments received after that date will not be considered in the decision to approve or disapprove Amendment 17. To be considered, comments must be received by close of business on the last day of the comment period.