This proposed rule amends 15 CFR Part 801 by revising paragraph 801.9(c) to set forth the reporting requirements for the BE-45, Quarterly Survey of Insurance Transactions by U.S. Insurance Companies with Foreign Persons. The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, will conduct the survey under the International Investment and Trade in Services Survey Act (Pub. L. 94-472, 90 Stat. 2059, 22 U.S.C. 3101-3108). Section 4(a) of the Act (22 U.S.C. 3103(a)) provides that the President shall, to the extent he deems necessary and feasible, conduct a regular data collection program to secure current information related to international investment and trade in services and publish for the use of the general public and United States Government agencies periodic, regular, and comprehensive statistical information collected pursuant to this subsection. In Section 3 of Executive Order 11961, as amended by Executive Order 12518, the President delegated his authority under the Act as concerns international trade in services to the Secretary of Commerce, who has redelegated it to BEA.

The major purposes of the survey are to monitor trade in insurance services, analyze its impact on the U.S. and foreign economies, compile and improve the U.S. economic accounts, support U.S. commercial policy on insurance services, conduct trade promotion, and improve the ability of U.S. businesses to identify and evaluate market opportunities.

As proposed, BEA will conduct the BE-45 survey on a quarterly basis beginning with the first quarter of 2004. The survey will update the data provided on the universe of insurance services transactions between U.S. insurance companies and foreign persons. Reporting is required from U.S. insurance companies whose covered transactions with foreign persons exceeded $8 million for the previous fiscal year or are expected to exceed that amount during the current fiscal year. In addition, the reporting threshold for this survey is applied separately to each of the eight individual types of transactions covered by the survey rather than to the sum of the data for all eight types combined. Insurance companies meeting these criteria must supply data on the amount of their insurance transactions for each type of insurance category, disaggregated by country. U.S. insurance companies that do not meet the mandatory reporting requirements are requested to provide voluntary estimates of their covered insurance transactions.

The transactions covered by this survey are: Reinsurance premiums received, reinsurance premiums paid, reinsurance losses paid, reinsurance losses recovered, primary insurance premiums received, primary insurance losses paid, auxiliary insurance services receipts, and auxiliary insurance services payments. (Auxiliary insurance services include agent's commissions, insurance brokering and agency services, insurance consulting services, evaluation and adjustment services, actuarial services, salvage administration services, and regulatory and monitoring services on indemnities and recovery services.)

The first survey conducted under this proposed rule will cover transactions in the first quarter 2004. BEA will send the survey to potential respondents in March of 2004; responses will be due by May 15, 2004.

This proposed rule is not significant for purposes of E.O. 12866.

This proposed rule does not contain policies with Federalism implications as that term is defined in E.O. 13132.

This proposed rule contains a collection of information requirement subject to the Paperwork Reduction Act (PRA) and has been submitted to the Office of Management and Budget for review under the PRA.

Notwithstanding any other provisions of the law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA unless that collection displays a currently valid Office of Management and Budget Control Number.

The BE-45 survey, as proposed, is expected to result in the filing of approximately 210 reports on a quarterly basis, or 840 responses annually, and the average annual respondent burden for completing the survey is estimated at 8 hours. Thus, the total respondent burden of the survey is estimated at about 6,720 hours (840 responses times 8 hours average burden). The actual burden will vary from reporter to reporter, depending upon the number and variety of their insurance transactions and the ease of assembling the data. This estimate includes time for respondents to review the instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information.

Comments are requested concerning: (a) 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; (b) the accuracy of the burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Comments should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230; or faxed (202-395-7245) or e-mailed ( pbugg@omb.eop.gov ) to the Office of Management and Budget, O.I.R.A., (Attention PRA Desk Officer for BEA).

The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. While the survey does not collect data on total sales or other measures of the overall size of businesses that respond to the survey, historically the respondent universe for the existing annual survey of international insurance transactions has been comprised mainly of major U.S. corporations. The proposed BE-45 quarterly survey will be required from U.S. insurance companies whose covered transactions with foreign persons exceeded $8 million for the previous fiscal year or are expected to exceed that amount during the current fiscal year. Thus, the exemption level will exclude most small businesses from mandatory coverage. Of those smaller businesses that must report, most will tend to have specialized operations and activities and thus will be likely to report only one type of insurance transaction, often limited to transactions with a single partner country; therefore, the burden on them can be expected to be small.

For the reasons set forth in the preamble, BEA proposes to amend 15 CFR Part 801, as follows:

This proposed rule amends 15 CFR Part 801.9 to set forth the reporting requirements for the BE-25, Quarterly Survey of Transactions with Unaffiliated Foreign Persons in Selected Services and in Intangible Assets. The Bureau of Economic Analysis (BEA), U.S. Department of Commerce, will conduct the survey under the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108). Section 4(a) of the Act (22 U.S.C. 3103(a)) provides that the President shall, to the extent he deems necessary and feasible, conduct a regular data collection program to secure current information related to international investment and trade in services and publish for the use of the general public and United States Government agencies periodic, regular, and comprehensive statistical information collected pursuant to this subsection. In Section 3 of Executive Order 11961, as amended by Executive Order 12518, the President delegated his authority granted under the Act as concerns international trade in services to the Secretary of Commerce, who has redelegated it to BEA.

The major purposes of the survey are to monitor trade in services and in intangible assets, analyze the impact of this trade on the U.S. and foreign economies, compile and improve the U.S. economic accounts, support U.S. commercial policy on services and intangible assets, conduct trade promotion, and improve the ability of U.S. businesses to identify and evaluate market opportunities.

As proposed, BEA will conduct the BE-25 survey beginning with the first quarter of 2004. The survey will update the data provided on the universe of transactions between U.S. and unaffiliated foreign persons in selected services and in intangible assets. Reporting is required from U.S. persons whose sales of covered services to unaffiliated foreign persons exceeded $6 million for the previous fiscal year or are expected to exceed that amount during the current fiscal year, or whose purchases of covered services from unaffiliated foreign persons exceeded $4 million for the previous fiscal year or are expected to exceed that amount during the current fiscal year. U.S. persons meeting any of these criteria must supply data on the amount of their sales or purchases for each type of covered service, disaggregated by country. U.S. persons that do not meet the mandatory reporting requirements are requested to provide voluntary estimates of their total sales and purchases of each type of covered service or intangible asset.

The proposed survey will also cover construction, engineering, architectural, and surveying services presently covered by the BE-47, Annual Survey of Construction, Engineering, Architectural, and Mining Services Provided by U.S. Firms to Unaffiliated Foreign Persons, and will cover the same transactions in intangible rights presently covered by the BE-93, Annual Survey of Royalties, License Fees, and Other Receipts and Payments for Intangible Rights Between U.S. and Unaffiliated Foreign Persons; both of these annual surveys would be discontinued, following a final data collection for 2003.

The proposed survey is mandatory and will be conducted under the International Investment and Trade in Services Survey Act. The first survey conducted under this proposed rule will cover transactions in the first quarter 2004. BEA will send the survey to potential respondents in March of 2004; responses will be due by May 15, 2004.

This proposed rule is not significant for purposes of E.O. 12866.

This proposed rule does not contain policies with Federalism implications as that term is defined in E.O. 13132.

This proposed rule contains a collection of information requirement subject to the Paperwork Reduction Act (PRA) and has been submitted to the Office of Management and Budget for review under the PRA.

Notwithstanding any other provisions of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection displays a currently valid Office of Management and Budget Control Number.

The BE-25 survey, as proposed, is expected to result in the filing of reports containing mandatory data from about 700 respondents on a quarterly basis, or 2,800 responses annually. The average burden for completing the BE-25 is estimated to be 16 hours. Thus, the total respondent burden of the survey is estimated at 44,800 hours (2,800 responses times 16 hours average burden). The actual burden will vary from reporter to reporter, depending upon the number and variety of their covered services transactions and the ease of assembling the data. This estimate includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Comments are requested concerning: (a) 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; (b) the accuracy of the burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Comments should be addressed to: Director, Bureau of Economic Analysis (BE-1), U.S. Department of Commerce, Washington, DC 20230, and either faxed (202-395-7245) or e-mailed ( pbugg@omb.eop.gov ) to the Office of Management and Budget, O.I.R.A. (Attention PRA Desk Officer for BEA).

The Chief Counsel for Regulation, Department of Commerce, has certified to the Chief Counsel for Advocacy, Small Business Administration, under provisions of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that this proposed rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. The information collection excludes most small businesses from mandatory reporting. Companies that engage in international transactions in covered services or intangible assets tend to be quite large. In addition, the reporting threshold for this survey is set at a level that will exempt most small businesses from reporting. The proposed BE-25 quarterly survey will be required from U.S. persons whose sales of covered services to unaffiliated foreign persons exceeded $6 million for the previous fiscal year or are expected to exceed that amount during the current fiscal year, or whose purchases of covered services from unaffiliated foreign persons exceeded $4 million for the previous fiscal year or are expected to exceed that amount during the current fiscal year. Thus, the exemption level will exclude most small businesses from mandatory coverage. Of those smaller businesses that must report, most will tend to have specialized operations and activities, so they will likely report only one type of transaction; therefore, the burden on them should be small.

For the reasons set forth in the preamble, BEA proposes to amend 15 CFR part 801, as follows:

The information in this section is organized as follows:

The EPA is proposing to grant the delisting petition submitted by Teris to have its stabilized hazardous waste incinerator ash excluded, or delisted, from the definition of a hazardous waste.

Teris' petition requests a delisting for the stabilized ash generated by its hazardous waste incinerator. Teris does not believe that the petitioned waste meets the criteria for which the EPA listed it. Teris also believes no additional constituents or factors could cause the waste to be hazardous. The EPA's review of this petition included consideration of the original listing criteria, and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(1)-(4). In making the initial delisting determination, the EPA evaluated the petitioned waste against the listing criteria and factors cited in § 261.11(a)(2) and (a)(3). Based on this review, the EPA agrees with the petitioner that the waste is nonhazardous with respect to the original listing criteria. (If the EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, the EPA would have proposed to deny the petition.) The EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. The EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. The EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. The EPA's proposed decision to delist waste from the Teris facility is based on the information submitted in support of this rule, including descriptions of the wastes and analytical data from the El Dorado, Arkansas facility.

Teris currently sends the petitioned waste to a hazardous waste landfill. If the delisting exclusion is finalized, Teris intends to dispose of the petitioned waste ( i.e. , stabilized hazardous waste incinerator ash) in a subtitle D solid waste landfill in Arkansas.

RCRA section 3001(f) specifically requires the EPA to provide notice and an opportunity for comment before granting or denying a final exclusion. Thus, the EPA will not grant the exclusion until it addresses all timely public comments (including those at public hearings, if any) on this proposal.

RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to become effective in less than six months after the EPA addresses public comments when the regulated facility does not need the six-month period to come into compliance. That is the case here, because this rule, if finalized, would reduce the existing requirements for persons generating hazardous wastes.

The EPA believes that this exclusion should be effective immediately upon final publication because a six-month deadline is not necessary to achieve the purpose of section 3010(b), and a later effective date would impose unnecessary hardship and expense on this petitioner. These reasons also provide good cause for making this rule effective immediately, upon final publication, under the Administrative Procedure Act, 5 U.S.C. 553(d).

Because the EPA is issuing this exclusion under the Federal RCRA delisting program, only States subject to Federal RCRA delisting provisions would be affected. This would exclude States who have received authorization from the EPA to make their own delisting decisions.

The EPA allows the States to impose their own non-RCRA regulatory requirements that are more stringent than the EPA's, under section 3009 of RCRA, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, the EPA urges petitioners to contact the state regulatory authority to establish the status of their wastes under the State law. Delisting petitions approved by the EPA Administrator under 40 CFR 260.22 are effective in the State of Arkansas only after the final rule has been published in the Federal Register and the rule has been adopted and approved by the Arkasas Pollution Control and Ecology Commission in Regulation No. 23.

The EPA published an amended list of hazardous wastes from nonspecific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA. The EPA has amended this list several times and published it in §§ 261.31 and 261.32.

The EPA lists these wastes as hazardous because: (1) they typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of Part 261 (that is, ignitability, corrosivity, reactivity, and toxicity) or (2) they meet the criteria for listing contained in § 261.11(a)(2) or (a)(3).

Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste described in these regulations generally is hazardous, a specific waste from an individual facility meeting the listing description may not be hazardous.

For this reason, §§ 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that the EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.

A delisting petition is a request from a facility to the EPA or an authorized State to exclude wastes from the list of hazardous wastes. The facility petitions the EPA because it does not consider the wastes hazardous under RCRA regulations.

In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which the EPA lists a waste are in Part 261 and further explained in the background documents for the listed waste.

In addition, under § 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and present sufficient information for the EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. (See Part 261 and the background documents for the listed waste.)

Generators remain obligated under RCRA to confirm whether their waste remains nonhazardous based on the hazardous waste characteristics even if the EPA has “delisted” the waste.

Besides considering the criteria in §§ 260.22(a) and 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed wastes, the EPA must consider any factors (including additional constituents) other than those for which the EPA listed the waste if a reasonable basis exists that these additional factors could cause the waste to be hazardous.

The EPA must also consider as hazardous waste mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste. See § 261.3(a)(2)(iii) and (iv) and (c)(2)(i), called the “mixture” and “derived-from” rules, respectively. These wastes are also eligible for exclusion and remain hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

On June 3, 2002, Teris petitioned the EPA to exclude from the lists of hazardous waste contained in §§ 261.31 and 261.32, a stabilized hazardous waste incinerator ash generated from the facility located in El Dorado, Arkansas. The waste falls under the classification of listed waste because of the “derived-from” rule in § 261.3. Specifically, in its petition, Teris requested that the EPA grant an exclusion for 30,000 cubic yards per calendar year of stabilized incinerator ash resulting from its hazardous waste thermal treatment process.

Teris is a commercial hazardous waste treatment and storage facility located in an industrial/commercial setting in the southern portion of the City of El Dorado, Union County, Arkansas. The facility is located east of El Dorado, Arkansas.

Teris thermally treats hazardous wastes (including listed hazardous wastes) that are generated at commercial and industrial facilities throughout the nation. The facility operates two rotary kilns that are used to destroy and remove the hazardous organic constituents found in the waste. These two kilns generate a solid residue ( i.e., incinerator ash) in which most of the organic constituents have been destroyed. The incinerator meets the 99.99% Destruction and Removal Efficiency requirement under 40 CFR part 264. This incinerator ash contains trace amounts of regulated metallic constituents that are not destroyed by the incineration process. Teris operates a stabilization treatment system for the incinerator ash that chemically binds the metals so as to prevent their release into groundwater.

To support its petition, Teris submitted:

(1) Historical information on past waste generation and management practices;

(2) results of the total constituent analysis for volatiles, semivolatiles, pesticides, herbicides and metals;

(3) results of the Toxicity Characteristic Leaching Procedure (TCLP) extract for those organics detected in the above total constituent analysis;

(4) results of the Multiple pH Protocol Procedure for metal constituents;

(5) results of both total constituent and leachable analysis for total cyanide and sulfide.

The EPA believes that the descriptions of the Teris analytical characterization provide a reasonable basis to approve the petition of Teris for an exclusion of the hazardous waste incinerator ash. The EPA believes the data submitted in support of the petition show that the stabilized hazardous waste incinerator ash is nonhazardous. Analytical data for the stabilized hazardous waste incinerator ash samples were used in the Delisting Risk Assessment Software. The data summaries for detected constituents are presented in Table I. The EPA has reviewed the sampling procedures used by Teris and has determined they satisfy the EPA's criteria for collecting representative samples of the variations in constituent concentrations in the hazardous waste incinerator ash. The data submitted in support of the petition show that constituents in Teris' waste are presently below health-based levels used in the delisting decision-making. The EPA believes that Teris has successfully demonstrated that the stabilized hazardous waste incinerator ash is nonhazardous.

For this delisting determination, the EPA used such information gathered to identify plausible exposure routes ( i.e. , ground water, surface water, air) for hazardous constituents present in the petitioned waste. The EPA determined that disposal in a Subtitle D landfill is the most reasonable, worst-case disposal scenario for the petitioned waste. The EPA applied the most recent version of the Delisting Risk Assessment Software (DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR 75637 (December 4, 2000), to predict the maximum allowable concentrations of hazardous constituents that may be released from the petitioned waste after disposal and determined the potential impact of the disposal of Teris' petitioned waste on human health and the environment. A copy of this software can be found on the World Wide Web at http://www.epa.gov/earth1r6/6pd/rcra_c/pd-o/dras.htm.

In assessing potential risks to ground water, the EPA used the maximum estimated waste volumes and the maximum reported extract concentrations as inputs to the DRAS program to estimate the constituent concentrations in the ground water at a hypothetical receptor well down gradient from the disposal site. Using the risk level (carcinogenic risk of 10-5 and non-cancer hazard index of 1.0), the DRAS program can back-calculate the acceptable receptor well concentrations (referred to as compliance point concentrations) using standard risk assessment algorithms and the EPA's health-based numbers. Using the maximum compliance point concentrations and the EPA Composite Model for Leachate Migration with Transformation Products (EPACMTP) fate and transport modeling factors, the DRAS further back-calculates the maximum permissible waste constituent concentrations not expected to exceed the compliance point concentrations in groundwater.

The EPA believes that the EPACMTP fate and transport model represents a reasonable worst case scenario for possible ground water contamination resulting from disposal of the petitioned waste in a landfill, and that a reasonable worst case scenario is appropriate when evaluating whether a waste should be relieved of the protective management constraints of RCRA Subtitle C. The use of some reasonable worst-case scenarios results in conservative values for the compliance-point concentrations and ensures that the waste, once removed from hazardous waste regulation, will not pose a significant threat to human health or the environment.

The DRAS also uses the maximum estimated waste volumes and the maximum reported total concentrations to predict possible risks associated with releases of waste constituents through surface pathways ( e.g. , volatilization or wind-blown particulate from the landfill). As in the above ground water analyses, the DRAS uses the risk level, the health-based data and standard risk assessment and exposure algorithms to predict maximum compliance point concentrations of waste constituents at a hypothetical point of exposure. Using fate and transport equations, the DRAS uses the maximum compliance point concentrations and back-calculates the maximum allowable waste constituent concentrations (or “delisting levels”).

In most cases, because a delisted waste is no longer subject to hazardous waste control, the EPA is generally unable to predict, and does not presently control, how a petitioner will manage a waste after delisting. Therefore, the EPA currently believes that it is inappropriate to consider extensive site-specific factors when applying the fate and transport model. The EPA does control the type of unit where the waste is disposed. The waste must be disposed in the type of unit the fate and transport model evaluates.

The EPA also considers the applicability of ground water monitoring data during the evaluation of delisting petitions. In this case, Teris has directly disposed of this material in commercial hazardous waste landfills located at other facilities. Since the Teris waste is commingled with other wastes in these landfills, no representative ground water monitoring data specific to the Teris incinerator ash exists. Therefore, the EPA has determined that it would be unnecessary to request ground water monitoring data.

The EPA believes that the descriptions made by Teris of the hazardous waste process and analytical characterization provide a reasonable basis to conclude that the likelihood of migration of hazardous constituents from the petitioned waste will be substantially reduced so that short-term and long-term threats to human health and the environment are adequately minimized.

DRAS calculates the maximum allowable concentration of chemical constituents in the incinerator ash. Since all maximum TCLP concentrations found in Table I are equal to or less than the maximum allowable TCLP concentration specified by DRAS and the associated risk assessment conducted by the EPA, the petitioned waste meets the applicable delisting criteria. In addition, on the basis of explanations and analytical data provided by Teris, pursuant to § 260.22, the EPA concludes that the petitioned waste does not exhibit any of the characteristics of toxicity, ignitability, corrosivity, or reactivity. See §§ 261.21, 261.22, and 261.23, respectively.

The EPA concluded, after reviewing Teris' processes that no other hazardous constituents of concern, other than those for which tested, are likely to be present or formed as reaction products or by-products in Teris' wastes. In addition, on the basis of explanations and analytical data provided by Teris, pursuant to § 260.22, the EPA concludes that the petitoned wastes do not exhibit any of the characteristics of ignitability, corrosivity, or reactivity. See §§ 261.21, 261.22 and 261.23, respectively.

During the evaluation of this petition, the EPA also considered the potential impact of the petitioned waste via non-ground water routes ( i.e. , air emission and surface runoff). With regard to airborne dispersion in particular, the EPA believes that exposure to airborne contaminants from the petitioned waste is unlikely. Therefore, no appreciable air releases are likely from the stabilized incinerator ash under any likely disposal conditions. The EPA evaluated the potential hazards resulting from the unlikely scenario of airborne exposure to hazardous constituents released from the stabilized incinerator ash in an open landfill. The results of this worst-case analysis indicated that there is no substantial present or potential hazard to human health and the environment from airborne exposure to constituents from the hazardous waste incinerator ash. A description of the EPA's assessment of the potential impact of incinerator ash, regarding airborne dispersion of waste contaminants, is presented in the RCRA public docket for this proposed rule. This docket is designated with the following code F-03-ARDEL-TERIS.

The EPA also considered the potential impact of the petitioned waste via a surface water route. The EPA believes that containment structures at municipal solid waste landfills can effectively control surface water runoff, as the Subtitle D regulations ( See 56 FR 50978, October 9, 1991) prohibit pollutant discharges into surface waters. Furthermore, the concentrations of any hazardous constituents dissolved in the runoff will tend to be lower than the levels in the TCLP leachate analyses reported in this notice due to the aggressive acidic medium used for extraction in the TCLP. The EPA believes that, in general, leachate derived from the waste is unlikely to directly enter a surface water body without first traveling through the saturated subsurface where dilution and attenuation of hazardous constituents will also occur. Leachable concentrations provide a direct measure of solubility of a toxic constituent in water and are indicative of the fraction of the constituent that may be mobilized in surface water as well as ground water.

Based on the reasons discussed above, the EPA believes that the contamination of surface water through runoff from the waste disposal area is very unlikely. Nevertheless, the EPA evaluated the potential impacts on surface water if the stabilized incinerator ash were released from a municipal solid waste landfill through runoff and erosion. See the RCRA public docket for this proposed rule for further information on the potential surface water impacts from runoff and erosion. The estimated levels of the hazardous constituents of concern in surface water would be well below health-based levels for human health, as well as below the EPA Chronic Water Quality Criteria for aquatic organisms (USEPA, OWRS, 1987). The EPA, therefore, concluded that this stabilized hazardous waste incinerator ash is not a present or potential substantial hazard to human health and the environment via the surface water exposure pathway.

The descriptions by Teris of the hazardous waste process and analytical characterization, with the proposed verification testing requirements (as discussed later in this notice), provide a reasonable basis for the EPA to grant the exclusion. The data submitted in support of the petition show that constituents in the waste are below the maximum allowable leachable concentrations (See Table 1). The EPA believes that the thermal treatment and subsequent stabilization process operated by Teris will substantially reduce the likelihood of migration of hazardous constituents from the petitioned waste. These treatment processes will also minimize short-term and long-term threats from the petitioned waste to human health and the environment.

Thus, the EPA believes that it should grant to Teris an exclusion for the stabilized hazardous waste incinerator ash. The EPA believes the data submitted in support of the petition show the stabilization treatment process operated by Teris can render the hazardous waste incinerator ash nonhazardous.

The EPA has reviewed the sampling procedures used by Teris and has determined they satisfy the EPA's criteria for collecting representative samples of variable constituent concentrations in the hazardous waste incinerator ash. The data submitted in support of the petition show that constituents in Teris' waste are presently below the compliance point concentrations used in the delisting decision-making process and would not pose a substantial hazard to the environment. The EPA believes that Teris has successfully demonstrated that the stabilized hazardous waste incinerator ash is nonhazardous.

The EPA therefore proposes to grant an exclusion to Teris, in El Dorado, Arkansas, for the stabilized hazardous waste incinerator ash described in its petition. The EPA's decision to exclude this waste is based on descriptions of the treatment activities associated with the petitioned waste and characterization of the stabilized hazardous waste incinerator ash.

If the EPA finalizes the proposed rule, the EPA will no longer regulate the stabilized incinerator ash under Parts 262 through 268 and the permitting standards of Part 270.

The petitioner, Teris, must comply with the requirements in 40 CFR part 261, appendix IX, table 1 as amended by this notice. The text below gives the rationale and details of those requirements.

This paragraph provides the levels of constituents that Teris must test the leachate from the stabilized incinerator ash, below which these wastes would be considered nonhazardous.

The EPA selected the set of inorganic and organic constituents specified in Paragraph (1) of 40 CFR part 261, appendix IX, table 1, based on information in the petition. The EPA compiled the inorganic and organic constituents list from the composition of the waste, descriptions of the treatment process used by Teris, previous test data provided for the waste, and the respective health-based levels used in delisting decision-making. These delisting levels correspond to the allowable levels measured in the TCLP extract and total concentrations of the waste.

The purpose of this paragraph is to ensure that Teris manages and disposes of any stabilized hazardous waste incinerator ash that might contain hazardous levels of inorganic and organic constituents according to Subtitle C of RCRA. Holding the stabilized hazardous waste incinerator ash until characterization is complete will protect against improper handling of hazardous material.

Teris must complete a rigorous verification testing program on the incinerator ash to assure that the stabilized incinerator ash does not exceed the maximum levels specified in Paragraph (1). If the EPA determines that the data collected under this Paragraph does not support the data provided for in the petition, the exclusion will not cover the tested waste. This verification program operates on two levels.

The first part of the verification testing program consists of testing every batch ( i.e. roll-off) of incinerator ash for specified indicator parameters as per Paragraph (1). Levels of constituents measured in the samples of the stabilized hazardous waste incinerator ash that do not exceed the levels set forth in Paragraph (1) are nonhazardous. Teris can manage and dispose the stabilized nonhazardous incinerator ash according to all applicable solid waste regulations. If any roll-off fails to meet the specified limits, then Teris must retreat the batch ( i.e. , reburn and/or restabilize) until the limits are met or they must dispose of the waste as hazardous. Organic indicators are those specified in the Waste Analysis Plan of Teris' RCRA permit to verify that the incinerator operated as demonstrated in the trial burn. Analysis for total and TCLP arsenic must be conducted.

The second part of the verification testing program is the quarterly testing of four representative composite samples of stabilized incinerator ash for all constituents specified in Paragraph (1). If Teris demonstrates for two consecutive quarters complete attainment of all specified limits, then Teris may request approval of the EPA to reduce the frequency of testing to annually. If, after review of performance of the treatment system, the EPA finds that annual testing is adequately protective of human health and the environment, then the EPA may authorize Teris to reduce the quarterly comprehensive sampling frequency to an annual basis. If the annual testing of the waste does not meet the delisting requirements in Paragraph 1, Teris must notify the EPA according to the requirements in Paragraph 6. The EPA will then take the appropriate actions necessary to protect human health and the environment per Paragraph 6. Teris must provide sampling results that support the rationale that the delisting exclusion should not be withdrawn.

The exclusion is effective upon publication in the Federal Register but the disposal cannot begin until the verification sampling is completed. Disposal is also not authorized if Teris fails to perform the quarterly and yearly testing as specified herein. Should Teris fail to conduct the quarterly/yearly testing as specified herein, then disposal of stabilized incinerator ash as delisted waste may not occur in the following quarter(s)/year(s) until Teris obtains the written approval of the EPA.

Paragraph (4) would allow Teris the flexibility of modifying its processes (for example, changes in equipment or change in operating conditions) to improve its treatment processes. However, Teris must prove the effectiveness of the modified process and request approval from the EPA. Teris must manage wastes generated during the new process demonstration as hazardous waste until it has obtained written approval and Paragraph (3), is satisfied.

To provide appropriate documentation that Teris' facility is properly treating the incinerator ash, Teris must compile, summarize, and keep delisting records on-site for a minimum of five years. It should keep all analytical data obtained through Paragraph (3) including quality control information for five years. Paragraph (5) requires that Teris furnish these data upon request for inspection by any employee or representative of the EPA or the State of Arkansas.

If the proposed exclusion is made final, then it will apply only to 30,000 cubic yards per calendar year of stabilized hazardous waste incinerator ash generated at the Teris facility after successful verification testing.

The EPA would require Teris to file a new delisting petition under any of the following circumstances:

(a) If Teris significantly alters the manufacturing process treatment system except as described in Paragraph (4).

(b) If Teris uses any new manufacturing or production process(es), or significantly change from the current process(es) described in its petition; or

(c) If Teris makes any changes that could affect the composition or type of waste generated.

Teris must manage waste volumes greater than 30,000 cubic yards per calendar year of stabilized hazardous waste incinerator ash as hazardous waste until the EPA grants a new exclusion. When this exclusion becomes final, the management by Teris of the stabilized incinerator ash covered by this petition would be relieved from Subtitle C jurisdiction. Teris must either (a) treat, store, or dispose of the waste in a State permitted on-site facility, or (b) Teris must ensure that it delivers the waste to an off-site storage, treatment, or disposal facility that has a State permit, license, or register to manage municipal or industrial solid waste.

The purpose of Paragraph 6 is to require Teris to disclose new or different information related to a condition at the facility or disposal of the waste if it is pertinent to the delisting. Teris must also use this procedure if the waste sample in the annual testing fails to meet the levels found in Paragraph 1. This provision will allow the EPA to reevaluate the exclusion if a source provides new or additional information to the EPA. The EPA will evaluate the information on which it based the decision to see if it is still correct, or if circumstances have changed so that the information is no longer correct or would cause the EPA to deny the petition if presented.

This provision expressly requires Teris to report differing site conditions or assumptions used in the petition in addition to failure to meet the annual testing conditions within 10 days of discovery. If the EPA discovers such information itself or from a third party, it can act on it as appropriate. The language being proposed is similar to those provisions found in RCRA regulations governing no-migration petitions at § 268.6.

The EPA believes that it has the authority under RCRA and the Administrative Procedures Act (APA), 5 U.S.C. 551 (1978) et seq. , to reopen a delisting decision. The EPA may reopen a delisting decision when it receives new information that calls into question the assumptions underlying the delisting.

The EPA believes a clear statement of its authority in delistings is merited in light of the EPA experience. See Reynolds Metals Company at 62 FR 37694 (July 14, 1997) and 62 FR 63458 (December 1, 1997) where the delisted waste leached at greater concentrations in the environment than the concentrations predicted when conducting the TCLP, thus leading the EPA to repeal the delisting. If an immediate threat to human health and the environment presents itself, the EPA will continue to address these situations case by case. Where necessary, the EPA will make a good cause finding to justify emergency rulemaking. See APA § 553 (b).

In order to adequately track wastes that have been delisted, the EPA is requiring that Teris provide a one-time notification to any State regulatory agency through which or to which the delisted waste is being carried. Teris must provide this notification within 60 days of commencing this activity.

If Teris violates the terms and conditions established in the exclusion, the EPA will start procedures to withdraw the exclusion. Where there is an immediate threat to human health and the environment, the EPA will evaluate the need for enforcement activities on a case-by-case basis. The EPA expects Teris to conduct the appropriate waste analysis and comply with the criteria explained above in Paragraph 1 of the exclusion.

The EPA is requesting public comments on this proposed decision. Please send three copies of your comments. Send two copies to the Section Chief of the Corrective Action and Waste Minimization Section, Multimedia Planning and Permitting Division (6PD-C), U. S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202. Send a third copy to Derick Warrick, P. E., Hazardous Waste Division, Arkansas Department of Environmental Quality (ADEQ), P.O. Box 8913, Little Rock, Arkansas 72219-8913. You should identify your comments at the top with this regulatory docket number: F-03-ARDEL-TERIS.

You should submit requests for a hearing to Steve Gilrein, Associate Director of RCRA, Multimedia Planning and Permitting Division (6PD-0), U. S. Environmental Protection Agency, 1445 Ross Avenue, Dallas, Texas 75202.

You may review the RCRA regulatory docket for this proposed rule at the U.S. Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, Texas 75202. It is available for viewing in the EPA Freedom of Information Act Review Room from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call (214) 665-6444 for appointments. The public may copy material from any regulatory docket at no cost for the first 100 pages, and at fifteen cents per page for additional copies.

Under Executive Order 12866, the EPA must conduct an “assessment of the potential costs and benefits” for all “significant” regulatory actions.

The proposal to grant an exclusion is not significant, since its effect, if promulgated, would be to reduce the overall costs and economic impact of the EPA's hazardous waste management regulations. This reduction would be achieved by excluding waste generated at a specific facility from the EPA's lists of hazardous wastes, thus enabling a facility to manage its waste as nonhazardous.

Because there is no additional impact from this proposed rule, this proposal would not be a significant regulation, and no cost/benefit assessment is required. The Office of Management and Budget (OMB) has also exempted this rule from the requirement for OMB review under Section (6) of Executive Order 12866.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an agency is required to publish a general notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis which describes the impact of the rule on small entities (that is, small businesses, small organizations, and small governmental jurisdictions). No regulatory flexibility analysis is required, however, if the Administrator or delegated representative certifies that the rule will not have any impact on a small entities.

This rule, if promulgated, will not have an adverse economic impact on small entities since its effect would be to reduce the overall costs of the EPA's hazardous waste regulations and would be limited to one facility. Accordingly, the EPA hereby certifies that this proposed regulation, if promulgated, will not have a significant economic impact on a substantial number of small entities. This regulation, therefore, does not require a regulatory flexibility analysis.

Information collection and record keeping requirements associated with this proposed rule have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (Pub. L. 96 511, 44 U.S.C. 3501 et seq. ) and have been assigned OMB Control Number 2050 0053.

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, which was signed into law on March 22, 1995, the EPA generally must prepare a written statement for rules with Federal mandates that may result in estimated costs to State, local, and tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year.

When such a statement is required for the EPA rules, under section 205 of the UMRA the EPA must identify and consider alternatives, including the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The EPA must select that alternative, unless the Administrator explains in the final rule why it was not selected or it is inconsistent with law.

Before the EPA establishes regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must develop under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, giving them meaningful and timely input in the development of the EPA's regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising them on compliance with the regulatory requirements.

The UMRA generally defines a Federal mandate for regulatory purposes as one that imposes an enforceable duty upon state, local, or tribal governments or the private sector.

The EPA finds that this delisting decision is deregulatory in nature and does not impose any enforceable duty on any State, local, or tribal governments or the private sector. In addition, the proposed delisting decision does not establish any regulatory requirements for small governments and so does not require a small government agency plan under UMRA section 203.

The Executive Order 13045 is entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This order applies to any rule that the EPA determines (1) is economically significant as defined under Executive Order 12866, and (2) the environmental health or safety risk addressed by the rule has a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the EPA. This proposed rule is not subject to E.O. 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866.

Because this action does not involve any requirements that affect Indian Tribes, the requirements of section 3(b) of Executive Order 13084 do not apply.

Under Executive Order 13084, the EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments.

If the mandate is unfunded, the EPA must provide to the Office Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of the EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires the EPA to develop an effective process permitting elected and other representatives of Indian tribal governments to have “meaningful and timely input” in the development of regulatory policies on matters that significantly or uniquely affect their communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

Under Section 12(d) of the National Technology Transfer and Advancement Act, the EPA is directed to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, business practices, etc.) developed or adopted by voluntary consensus standard bodies. Where available and potentially applicable voluntary consensus standards are not used by the EPA, the Act requires that the EPA provide Congress, through the OMB, an explanation of the reasons for not using such standards.

This rule does not establish any new technical standards and thus, the EPA has no need to consider the use of voluntary consensus standards in developing this final rule.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Under section 6 of Executive Order 13132, the EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the EPA consults with State and local officials early in the process of developing the proposed regulation.

This action does not have federalism implication. It will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it affects only one facility.

For the reasons set out in the preamble, 40 CFR part 261 is proposed to be amended as follows:

NHTSA issued the original version of Federal Motor Vehicle Safety Standard (FMVSS) 101, Controls and Displays, in 1967 (32 FR 2408) as one of the initial FMVSSs. The standard applies to passenger cars, multipurpose passenger vehicles (MPVs), trucks, and buses. 1 The purpose of the original standard was to assure the accessibility and visibility of motor vehicle controls and displays under all lighting conditions. The standard was designed to reduce the risk of safety hazards caused by the diversion of the driver's attention from the driving task to locate and identify the desired control or display, and to ensure that a driver wearing a safety belt could reach controls needed to accomplish the driving task.

At present, FMVSS 101 specifies requirements for the location (S5.1), identification (S5.2), and illumination (5.3) of various controls and displays. It specifies that those controls and displays must be accessible and visible to a driver properly seated wearing his or her safety belt. Table 1, “Identification and Illumination of Controls,” and Table 2, “Identification and Illumination of Displays,” indicate which controls and displays are subject to the identification requirements, and how they are to be identified, colored, and illuminated.

In 1996, pursuant to a March 4, 1995 directive entitled “Regulatory Reinvention Initiative” from the President to the heads of departments and agencies, 2 NHTSA undertook a review of its regulations and directives. During the course of this review, we identified regulations that could be proposed for elimination as unnecessary or for revision to improve their comprehensibility, application, or appropriateness.

We identified FMVSS 101 as one of those regulations because it appeared to be a candidate either for elimination or revision. We were concerned that the Standard might be imposing a needless regulatory burden on the public by regulating aspects of motor vehicle design that were beyond what was needed to assure safety.

To explore these concerns further, the agency proposed a number of alternative ways that might reduce the regulatory burden of this standard. Specifically, in a May 30, 1996 notice of proposed rulemaking (61 FR 27039), we identified the following approaches to amending FMVSS 101: (1) Rescinding the standard; (2) regulating only those controls and displays whose function is related to motor vehicle safety, and removing outdated provisions; (3) regulating only those controls and displays required by other FMVSSs; (4) consolidating all control and display requirements into FMVSS 101; and (5) permitting the use of International Standards Organization (ISO) symbols on some or all controls and displays currently required to be identified. We announced that if we decided not to rescind FMVSS 101, we might adopt one or more of the other proposals.

The public comments on the proposal indicated that the current requirements are not imposing unnecessary regulatory burdens. None of the commenters urged rescission of the standard. Further, there was no broad consensus, even among the vehicle manufacturers, in support of any of the proposals.

After reviewing the public comments, we published a final rule, announcing that we had decided not to adopt any of the proposals (62 FR 32538; June 16, 1997). We nonetheless amended the standard by removing outdated provisions.

In response to the proposal to regulate only those controls and displays whose function is “related to motor vehicle safety,” some commenters questioned our suggestion in the NPRM that some controls and displays were not related to safety. In the final rule, we did not provide guidance on which controls and displays are or are not safety related. 3

As to our proposal to permit the use of ISO symbols to identify some or all controls and displays currently required by the standard to be identified, commenters from the motor vehicle industry generally supported that proposal. The American Automobile Manufacturers Association (AAMA) supported use of the ISO symbols, noting that symbols not specified in FMVSS 101 have been used in U.S. vehicles for years and that the “motoring public has been educated as to the meaning of these symbols.”

On the other hand, public interest groups raised concerns about the ISO symbols. The Center for Auto Safety (CAS) urged us not to permit ISO symbols because of potential adverse safety consequences if a driver were uncertain how to interpret the symbols. Commenters opposed to using ISO symbols also cited several past NHTSA rulemakings, especially several on the brake standards, in which the agency had expressed reluctance to permit ISO symbols whose meaning it did not believe to be intuitively obvious, i.e. , immediately understandable without the necessity for any education or memorization.

In the response to these comments, we expressed our commitment to “exploring the possibilities of harmonizing its regulatory requirements with the regulatory requirements of other nations, provided that such harmonization does not reduce the safety protection afforded to the American public.”

Two primary concerns underlie this proposal to update FMVSS 101.

First, we tentatively conclude that requiring vehicle controls and displays to be consistently identified by means of an internationally recognized set of graphics in all vehicles would promote safety. This is particularly important as the controls and displays in vehicles increase in number and complexity.

The consistent use in all new motor vehicles of a single symbol for each function would increase the recognition of that function among all drivers. Moreover, the internationally recognized symbols are independent of any particular language. In addition, using an established set of symbols also used in other areas enhances their recognition.

The foregoing considerations have led us to propose the use of a graphic symbol set established by the International Standards Organization (ISO) specifically for controls and displays in motor vehicles, ISO 2575:2000. The ISO symbol set has existed for many years. The great majority of vehicles manufactured for sale in the U.S. already use many of these symbols. As a result, U.S. drivers have become familiar with many of them through exposure in their current vehicles.

We believe that, for all vehicles sold today, the vehicle owner's manual lists the symbols used in the vehicle and explains their meanings. To test this belief, NHTSA staff randomly selected owner's manuals for 12 different vehicles. All of the vehicles used some ISO symbols. In all cases, the manuals provided complete explanations of all symbols used in the vehicle, including their definition and the function or condition they represented. Therefore, an explicit requirement that manufacturers list such information in their vehicles' owners' manuals appears unnecessary.

We recognize that some vehicle functions are easily represented by a symbol, such as the horn, while others may be more difficult to convey graphically. Nonetheless, the consistent and widespread use of even the less intuitive symbols generates understanding of their meanings.

We note that an SAE report from the early 1980s, “Investigation Into the Identification and Interpretation of Automotive Indicators and Controls,” showed that U.S. drivers generally failed to recognize the ISO brake malfunction symbol, a graphic representation of a brake drum and shoes with an exclamation point in the center. In general, the word “BRAKE” better communicated a brake malfunction. In the twenty-plus years since that report, many manufacturers have used the ISO symbols for parking brake, brake lining wear, ABS, and brake malfunction in U.S. vehicles (accompanied by the English word, where required), so that U.S. drivers are much more exposed to the graphic of the brake drum and shoes than they were in the past. We believe that the proposed five-year phase-in of the ISO brake symbol proposed here, during which the word “BRAKE” must appear in combination with the ISO brake malfunction symbol, would contribute toward all drivers learning the meaning of the symbol.

We also note that, nearly 20 years ago, the agency stated that it agreed with the idea that “too many symbols” would not be in the interest of motor vehicle safety. 4 However, we believe today, the issue is not so much the number of symbols or other identifiers, but the number of controls, telltales and indicators. In today's increasingly sophisticated vehicles, the number of controls, telltales and indicators is steadily increasing. These items must be identified in some fashion.

The function of FMVSS 101 is not to limit or regulate the number of controls, telltales and indicators in vehicles; instead, its function is to ensure that when a regulated control, telltale, or indicator exists in the vehicle, proper identification is provided. Whether that identification is a word, an abbreviation, or a graphic, it is a means of representing a specific vehicle function or condition. We tentatively conclude that, in response to the increase in the number of controls in vehicles, it would be desirable to require each control to be labeled with the same symbol in every vehicle in order to minimize driver confusion and distraction. After a period of learning, symbols would be generally recognized as to the function or condition they represent.

Second, we tentatively conclude that there is a need to amend FMVSS 101 in response to the development and increased use of multi-function controls linked to a display screen remote from the control itself to convey information to drivers about the status of multiple vehicle systems and means of controlling those systems. We believe that FMVSS 101's current requirement that the identification for controls “be placed on or adjacent to the control” restricts the design of these types of systems unnecessarily. Accordingly, we are proposing an amendment to accommodate those systems.

Implementing its commitment to explore the international harmonization of FMVSS 101, NHTSA talked with Transport Canada (Canada's counterpart to the U.S. Department of Transportation) in the late 1990s about Canada's controls and displays standard, i.e. , Canadian Motor Vehicle Safety Standard 101. The joint goal of NHTSA and Transport Canada in these talks was to revise their respective standards so that, subject to the overriding concern of ensuring that they continue to provide at least the same level of motor vehicle safety, they are better organized, easier to understand, and consistent with the positions of the U.S., Canada, and European standards organizations. This notice of proposed rulemaking is based in part on that collaboration.

The United States and Canada have also informally discussed earlier drafts of the proposed FMVSS 101 and the possibility of its being considered for adoption by other countries participating in the United Nations/Economic Commission for Europe World Forum for Harmonization of Vehicle Regulations (also know as Working Party 29). Working Party 29 administers two agreements dealing with the establishment and harmonization of technical motor vehicle safety regulations: a 1958 Agreement called the “Agreement concerning the adoption of uniform technical prescriptions for wheeled vehicles, equipment and parts which can be fitted and/or be used on wheeled vehicles and the conditions for reciprocal recognition of approvals granted on the basis of these prescriptions” and a 1998 Agreement known as the 1998 Global Agreement. The 1998 Global Agreement provides for the establishment of global technical regulations regarding the safety, emissions, energy conservation and theft prevention of wheeled vehicles, equipment and parts. The Agreement contains procedures for establishing global technical regulations by either harmonizing existing regulations or developing new ones.

On July 18, 2000, in anticipation of the 1998 Global Agreement's entry into force, NHTSA published a request for public comments on the agency's list of preliminary recommendations of standards or aspects of standards for consideration by the Contracting Parties to the Agreement in prioritizing the development and establishment of global technical regulations under the Agreement (65 FR 44565). In the notice, the agency said that it believed that the recommendations would serve the interest of improving motor vehicle safety in the U.S. It also said it would help carry out the 1998 Global Agreement's goal of continuously improving and seeking high levels of safety around the world. In turn, accomplishing that goal would promote the development of new and/or better U.S. standards, thus leveraging the available NHTSA resources for such development.

One of NHTSA's preliminary recommendations in the notice concerned controls and displays:

After reviewing the public comments, we published a document on January 18, 2001 (66 FR 4893) (DOT Docket No. NHTSA-00-7638; Notice 2) setting forth the recommendations the agency would make to WP.29. We submitted those recommendations at the March 2001 meeting of WP.29 in Geneva. WP.29 considered our recommendations and those of other Contracting Parties and in March 2002 adopted a work program of initial priorities under the 1998 Global Agreement, including controls and displays.

In S4, Definitions, we propose the following new or amended definitions:

1. “Adjacent”—At present, the term “adjacent” appears in FMVSS 101's “Identification” section at S5.2.1(a) “The identification appears on or adjacent to the control” and at S5.2.3: “The identification required or permitted by this section shall be placed on or adjacent to the display that it identifies.” The word “adjacent” is not presently defined in FMVSS 101. As will be explained more fully below, the term “adjacent” has resulted in several requests for interpretation of what “adjacent” means for controls that are identified by images that appear on a digital display screen. We propose to clarify “adjacent” with the following definition: “Adjacent, with respect to a symbol identifying a control, telltale or indicator, means: (a) the symbol is in close proximity to the control, telltale or indicator; and (b) no other control, telltale, indicator, identifying symbol or source of illumination appears between the identifying symbol and the telltale, indicator, or control that the symbol identifies.” This would put into regulatory form the definition of the term “adjacent” that we have used in FMVSS 101 interpretation letters such as the June 8, 2000 letter to an unidentified company, and the February 27, 2001 letter to Mazda North American Operations.

2. “Common space”—This term, which is used but not defined in FMVSS 101, would be defined as “an area on which more than one telltale, indicator, identifier or other message may be displayed, but not simultaneously.” This definition is intended to address designs in which a “common space” is used to display more than one warning, message or identification, but not simultaneously. The “common space” is a space-saving device.

3. “Control”—At present, FMVSS 101 regulates both hand-operated controls and foot-operated controls. The Standard requires that certain foot-operated controls, i.e. , those for service brake, accelerator, clutch, high beam, windshield washer and windshield wiper, must be operable by the driver. We propose to limit the term “control,” and thus FMVSS 101 itself, to hand-operated controls. We are doing so for two reasons. First, we are unaware of any current vehicles whose high beam, or windshield washer or wiper controls are foot-operated. Second, there is no need, as a practical matter, to include a requirement that service brakes, accelerators, and clutches be operable by the driver.

4. “Indicator”—We propose to use this new term to replace the term “gauge” because “gauge” connotes an analog display whereas “indicator” does not. We propose to define “indicator” as “a device that shows the magnitude of physical characteristics that the instrument is designed to sense.”

5. “Multi-function control” and “multi-task display.” We propose two new definitions to address the use of controls that select several different vehicle functions and that display information about those functions on a display that is remote from the control. A multi-function control is “a control through which the driver may select, and affect the operation of, more than one vehicle function.” A multi-task display is “a display on which more than one message can be shown simultaneously.” These controls and displays are discussed in Section V.I.

6. “ Telltale ”—We propose to redefine “telltale” as an “optical signal that, when illuminated, indicates the actuation of a device, a correct or improper functioning or condition, or a failure to function.” It is NHTSA's belief that this proposed definition is more specific and less broad than the present definition.

At present, FMVSS 101 at S5 excludes vehicles of 4,536 kg (10,000 lb) or greater gross vehicle weight rating from the location, illumination, and color requirements for displays. We are proposing to remove the exclusion, and to make the standard's display requirements applicable to medium and heavy vehicles. Our rationale to include these vehicles is that it would meet the need for safety to ensure that drivers of medium and heavy vehicles are able to see and identify their displays as easily as do drivers of light vehicles.

At S5.1.1, in the section on “Location,” we propose to require that the controls listed in the standard must be located so that they are within reach of the driver while the driver is restrained by a crash protection system pursuant to FMVSS 208, Occupant Crash Protection. Included are not only controls essential to the driving task ( i.e., turn signal, windshield wiping and washing), but also controls such as the air conditioning and heating control and fan control.

We propose at S5.2.1 that the standard exclude only horns actuated by lanyards from the requirement for identifying horn actuators. This would remove a current exclusion for ring-type horn actuators. We are unaware of any vehicles that use ring-type horn controls. However, we believe that with the current interest in styling vehicles to resemble earlier models we may again see ring-type horn controls in some vehicles. 5 Since the majority of current drivers would not be familiar with the use of this type of horn control, it should be labeled, if possible. We seek comment on whether this type of horn actuator is used in vehicles currently in production, or planned for production. If ring-type horn actuators are used, in what types of vehicles are they found, and is there a means by which they can be labeled?

At S5.3.2.1, we propose to specify that means be provided “for illuminating the indicators, identifications of indicators, and identifications of hand-operated controls listed in Table 1 sufficiently to make them visible to the driver under daylight and nighttime driving conditions.” At S5.3.3, we propose to specify that means be provided for illuminating telltales and their identification sufficiently to make them visible to the driver “under daylight and nighttime driving conditions.” The present language at S.5.3.3(a) states that means shall be provided for making controls, gauges, and their identification of those items “visible to the driver under all driving conditions.” The narrower “visible * * * under daylight and nighttime conditions” language is proposed because under some extreme lighting conditions ( e.g. driving directly into a sunrise or sunset), it is virtually impossible to make illuminated symbols (even after adjusting the level of illumination) or non-illuminated symbols be visible to the driver. NHTSA believes that, for the most part, the instances in which the driver cannot see symbols are of short duration, and therefore would not cause a safety problem if the telltales and/or their identifiers were not “visible” to the driver during that short time period.

In the current standard, Table 1 lists controls, the symbols and/or words to identify them, and whether illumination is required, while Table 2 lists displays, the symbols and/or words to identify them, the required color, and whether illumination is required.

The proposed revised standard would have two tables, each of which would include both controls and displays.

Table 1 would specify symbols, color requirements and whether illumination is required for controls, telltales, and indicators for which we are proposing illumination or color requirements. These proposed requirements reflect requirements already in FMVSS 101, CMVSS 101, ECE 78/316, or are proposed in the draft GTR on “Hand controls, tell-tales, and indicators.”

Table 2 would specify symbols for controls, telltales, and indicators other than those listed in proposed Table 1. No color or illumination requirements are specified in this table.

We believe that the new, proposed tables would simplify a search for a symbol and show when a symbol is used for several different displays (control, indicator, or telltale). The symbols in the proposed tables are essentially identical to the ISO symbols.

1. Table 1. As indicated above, the proposed Table 1 lists controls, telltales, and indicators for which we are proposing an illumination or color requirement. Column 1 of the table names the control, telltale or indicator, column 2 specifies the required symbol, column 3 indicates whether the item is a control, telltale, indicator, or some combination of control, telltale, or indicator, column 4 states whether illumination is required for that item, and column 5 specifies the required color, if any. All controls, telltales, and indicators that had an illumination or color requirement in the present Tables 1 and 2 are proposed to be included in new Table 1.

a. Items in Proposed Table 1 Not in the Current Tables. The following items are proposed to be included in the new Table 1, but do not appear in either of the current FMVSS 101 tables: (1) The controls and telltales for front and rear fog lamps and parking lamps; (2) the telltale concerning air bag malfunction required by FMVSS 208; and (3) the engine on-board diagnostics telltale required by emissions standards.

b. Air Bag Malfunction Telltale. While FMVSS 208 requires a telltale concerning air bag malfunction, the identification is not specified. This has resulted in manufacturers using different identifications, e.g. , “SRS” or “INFL REST”. We propose to require the ISO symbol for air bag malfunction to make the display uniform in all vehicles.

c. Malfunction of Trailer ABS Telltale. Table 1 includes a telltale indicating a malfunction of trailer antilock brake system (ABS). We note that the symbol for the telltale is not identical to the ISO symbol. The ISO specifies a symbol that indicates which trailer, in a rig hauling multiple trailers, is experiencing the problem. To our knowledge, no current vehicle has this sensing capability. FMVSS 121, Air Brake Systems, requires tractor and trailer ABS malfunctions to be identified separately. However, only one telltale is required for trailer ABS malfunctions, regardless of the number of trailers. The ABS malfunction telltales proposed in Table 1, if adopted, would permit compliance with braking standards. The ISO symbol, which includes numbered trailers, on the other hand, represents a capability not required by any country's safety standard, and therefore would require more than is necessary for compliance with braking standards. We believe that manufacturers currently do not plan to use that symbol because standard tractor/trailer wiring systems have too few lines to make it possible to communicate information indicating which trailer is experiencing the problem.

d. Required Use of Symbols and Word Identifiers for Brake Telltales.

FMVSS 101 currently specifies that for controls and displays for which a symbol is shown in the standard's tables, the control or display must be identified by either that symbol or by the word or abbreviation shown in the tables. The standard requires some items, including the brake system malfunction telltales required by FMVSS 105 and 135, to be identified by words.

In proposed Table 1, identifying words or abbreviations have been eliminated for all telltales, except for the brake system malfunction telltales regulated by FMVSS 105 and 135, for which the word “BRAKE” is incorporated into the symbols. We are proposing to require the word “BRAKE”, in addition to the ISO symbol, for these telltales to aid consumers in correctly interpreting the meaning of the brake symbols during a five-year learning period.

The requirements for the word “BRAKE” would end after the five year period. We believe that five years is enough time to enable the American public to learn the meaning of the symbols. We seek public comment on the length of this period.

We believe that requiring the use of a standardized set of symbols would promote safety by making the manner of identification of controls, telltales and indicators uniform across the fleet, thereby reducing driver distraction. It also harmonizes U.S. requirements and symbol usage with Canadian and UN/ECE standards.

e. Air Bag Deactivated Telltale. The advanced air bag requirements of FMVSS 208 include, for vehicles that have automatic suppression features, a requirement for a telltale that indicates whether the passenger air bag is deactivated. See S19.2.2. Among other things, the telltale must have the identifying words “PASSENGER AIR BAG OFF” or “PASS AIR BAG OFF” on the telltale or within 25 mm (1.0 in) of the telltale. The advanced air bag requirements are being phased in on a mandatory basis beginning September 1, 2003. We have decided not to propose any change in FMVSS 208's requirements for this telltale at this time, i.e. , it will continue to be required to have the identifying words “PASSENGER AIR BAG OFF” or “PASS AIR BAG OFF” on the telltale or within 25 mm (1.0 in) of the telltale.

f. Speedometer. As with the existing version of FMVSS 101, a vehicle's speedometer would be required to be identified with “MPH, or MPH and km/h”. The intent is to require speedometer display in MPH, and to allow the addition of km/h at the option of the manufacturer. This differs from the requirements of many other countries. However, as we explained in a final rule published in the Federal Register on May 15, 2000 (65 FR 30915), speedometers graduated in km/h only would be useless for drivers in the U.S., where speed limits are communicated in MPH alone.

2. Proposed Table 2. As discussed earlier, proposed Table 2 specifies symbols for the controls, indicators and telltales that are not listed in Table 1. Proposed Table 2 items have no illumination, location, or color requirements. A vehicle containing an item listed in either proposed Table 1 or Table 2 would be required to use the symbol listed for the item, regardless of the vehicle's weight class.

Comments are requested on increasing the objectivity, and thus the enforceability, of the performance requirements proposed in this document. For example, is there an appropriate way to increase the objectivity of the proposed requirement that “Any indicator or telltale not listed in Table 1 and any identification of that indicator or telltale must not be a color that masks the driver's ability to recognize any telltale, control, or indicator listed in Table 1” (Proposed S5.4.2)? What colors mask the specified colors in the tables, and under what circumstances, i.e. , is masking partly a function of the distance between two of these items and the relative brightness of the two items?

FMVSS 101 currently specifies that a common space may be used to display messages from any sources, subject to several requirements. One of the requirements is that the telltales for the brake, high beam, turn signal, and safety belt may not be shown in the common space. These telltales are of particular safety significance. This requirement ensures that these telltales, if activated, are always visible to the driver.

We are proposing to modify this requirement in a way that will provide increased flexibility. Under our proposal, an expanded list of telltales of particular safety significance—the telltales for any brake system malfunction, the air bag malfunction, the side air bag malfunction, low tire pressure, passenger air bag off, high beam, turn signal, and seat belt—could be in a common space but not with any other of these telltales. If one of these telltales were activated, it would be required to displace any other symbol or message in that common space while the underlying condition that caused the telltale's activation exists. This modified requirement would continue to ensure that these telltales, if activated, would always be visible to the driver.

Over the past several years, we have addressed several requests for interpretation asking how FMVSS 101's requirements for identifying controls apply to advanced design concepts that use one control to access many vehicle functions, with the control's functions displayed on a screen remote from the control. These interpretations include a June 8, 2000 interpretation to a manufacturer whose identity is confidential, a February 28, 2001 interpretation to Mazda, and a January 10, 2002 interpretation to Porsche.

In interpreting FMVSS 101 over the years, we have sought to interpret it in a broad manner in light of new technology. As we explained in our letter to Porsche, however, there is a limit to how much we can do by interpretation as opposed to conducting rulemaking to facilitate the use of new technology.

We believe that FMVSS 101's current requirement that the identification for controls “be placed on or adjacent to the control” has a particular potential to restrict the use of advanced design concepts. The system that Porsche asked about included a “combination multi-function switch/rotary dial,” similar to a joystick, located on the center console between the driver's seat and the front passenger seat, and a small display screen on the dashboard. The display screen provided the identification for the various functions of the dial, which changed as different functions were selected. Thus, the dial needed to be operated in conjunction with the display screen. As we explained in our letter to Porsche, however, the dial ( i.e. , the control) and the related display (which provided the identification for functions of the control) could not be considered to be “adjacent” to each other, given the distance between them.

We have tentatively concluded that FMVSS 101 is unnecessarily design restrictive with respect to multi-function controls that use remote displays to identify the various functions of the controls, such as Porsche's control. As we noted in our letter to Porsche, the use of this type of system may be intuitive to persons who are familiar with computers and/or video games, since use of the multi-function switch/rotary dial is analogous to the use of a computer mouse or video game controller. Also, for reasons of ergonomics, there may be advantages to separating the control and the display. In the case of the system identified by Porsche, the control between the driver seat and front passenger seat is easily reached by the driver without having to lean forward, and the location of the display on the instrument panel enables the driver to see the identification for the multi-function system without having to look down to the console, away from the road.

On November 23, 2001, the agency received a petition for rulemaking from the Alliance of Automobile Manufacturers (the Alliance) to eliminate the adjacency requirement from the current 49 CFR 571.101, Section S5.2.1(a). The agency granted the petition and is taking up the issue in this rulemaking. The Alliance contends that the current language of S5.2.1(a) “* * * has become an inadvertent design restriction on technologically advanced vehicle control and display systems. The Alliance believes that such an amendment is needed to facilitate the introduction of advanced vehicle control and display systems that can enhance vehicle safety by reducing the need for a driver to take his or her eyes of (sic) the roadway to operate multiple vehicle controls and by reducing the potential for driver confusion that could arise from ‘information overload’ from multiple identification symbols on a single control.” The Alliance proposed the following language to replace the current S5.2.1(a):

(1) We note that the Alliance did not provide data to support its claim that these “advanced vehicle control and display systems” can, in fact, reduce the amount of time the driver needs to look away from the road to locate and operate controls while driving;

(2) Although it would drop the adjacency requirement, the proposal does not define what proper identification would be. Can a control be said to be truly identified if there is no visual clue as to which label belongs with which control?;

(3) The Alliance's suggested requirement that the identification need only be visible to the driver when the control is operating the corresponding vehicle system raises the question of how the driver will be able to locate the control for a system that is not currently operating, but when the need for it arises, may be urgent. For example, access to windshield wiper controls becomes critical when a sudden rainstorm begins. Control identification is probably most important in terms of driver distraction when the vehicle system desired is not operating, but operation is desired to begin.

(4) The Alliance's proposed explanatory text, “* * *controls* * * may be combined” is irrelevant since the current standard does not prohibit the combination of controls. However, it raises the question, are there controls that should not be combined? An example would be the headlight switch. If the headlight switch were part of a multi-function control, would it be too easy for the driver to inadvertently flash the headlights, or for the driver to have trouble locating the headlight switch quickly?

In an attempt to address the petitioner's concerns, we have proposed limited exemption from the adjacency requirement if the control is associated with a display, located in the driver's view, which clearly shows all functions available from that control (see proposed regulatory text at S5.1.4). We have also added a definition for “multi-function control” to S4.

We seek comment on the following issues related to the use of multi-function controls and multi-task displays as well as comment on the proposed regulatory language itself:

(1) If a display screen shows all of the functions available from a multi-function control, as required by the proposed text, how important is it to vehicle safety that the control itself be labeled?

(2) Please provide any data related to the safety of use of multi-function controls, such as the number of times the driver looks away from the road, the length of these glances, etc., while using the control in different driving scenarios. Compare this to traditional single controls.

(3) Are there controls that, for the sake of vehicle safety, should not be combined with any other controls, or should not be combined with certain other controls?

We request comments on whether any other exceptions from the “on or adjacent” requirement would be appropriate. In providing comments on this issue and on the proposed language for the exceptions discussed above, we ask that manufacturers and other interested persons consider discussing future advanced design concepts  6 that may now be foreseeable.

We invite public comment on any other FMVSS 101 issue that the commenter may wish to raise. For example, we seek comment on whether the selection of some controller/multi-task display combinations are, or could become, too complex for some drivers.

Several other safety standards include requirements that are affected by the proposed changes to FMVSS 101, including FMVSS 105, 121 and 135. While we are not specifying specific proposed regulatory text, we will make any necessary conforming amendments as part of the final rule.

We believe the controls, telltales and indicators that would be regulated by the proposed new version of FMVSS 101 are already identified by vehicle manufacturers. The primary cost of this rulemaking would therefore be changing the identification of those controls, telltales and indicators that are not already identified by the proposed symbols but are instead identified by words or some other symbol. To the extent that such changes are made in the course of normal vehicle redesigns, such costs would be negligible.

Given that the benefits of this rulemaking are nonquantifiable and recognizing that it could be costly for some manufacturers to have to redesign their vehicles within a short time period to meet the proposed requirements, we tentatively conclude that it is in the public interest to provide a long leadtime for the proposed requirements. We are proposing a leadtime of five years for light vehicles and eight years for vehicles with a GVWR of 4,536 kg. or greater.

The proposed leadtime would generally permit manufacturers to redesign their vehicles to meet the proposed requirements at the same time as they redesign their vehicles for other purposes. A longer leadtime is proposed for heavier vehicles because they are redesigned less often and because they have not previously been subject to FMVSS 101's requirements for displays.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

We have considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action is also not considered to be significant under the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979).

For the following reasons, we believe that this proposal, if made final, would not have any quantifiable cost effect on motor vehicle manufacturers. We believe that all vehicle manufacturers already identify each control, telltale or indicator provided in vehicles that they manufacture. We believe that because we are providing five to eight years of leadtime, if this proposed rule is made final, there would be enough leadtime for manufacturers to make necessary vehicle changes that coincide with continuous design changes in motor vehicles for future model years.

If this proposed rule is made final, we believe manufacturers would incur minuscule costs to make the identifications meet FMVSS 101. This rule, if made final, would specify the symbol that must be used to identify each control, telltale, or indicator in a motor vehicle. This requirement would only apply if that control, telltale or indicator were listed in one of the tables proposed in this NPRM.

Because the economic impacts of this proposal are so minimal, no further regulatory evaluation is necessary.

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). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule would not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.

The Administrator has considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and certifies that this proposal would not have a significant economic impact on a substantial number of small entities. We believe that if this proposed rule is made final, small motor vehicle manufacturers would incur minuscule costs to make the identifications of controls, telltales, and indicators in their vehicle meet FMVSS 101. The statement of the factual basis for the certification is that this proposed rule, if made final, would require specific symbols to be placed on a motor vehicle control, telltale, or indicator, if that control, indicator or telltale is listed in one of three tables in FMVSS 101, and is provided in that vehicle. If any such control, indicator or telltale already is provided in a motor vehicle, the vehicle manufacturer already provides some type of identification for it. The only change would be a substitution of existing symbols. We propose to give manufacturers lead time of five to eight years to provide the new symbols. Nothing in this proposed rule, if made final, would require that any telltale, indicator, or control be provided in a motor vehicle. For manufacturers of motor vehicles with multi-task controls, we propose to relieve a regulatory restriction. For these reasons, and for the reasons described in our discussion on Executive Order 12866 and DOT Regulatory Policies and Procedures, the agency believes that this proposal would, if made final, may have a minuscule, but not significant, cost effect on small motor vehicle manufacturers considered to be small business entities.

Executive Order 13132 requires us to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, we may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or unless we consult with State and local governments, or unless we consult with State and local officials early in the process of developing the proposed regulation. We also may not issue a regulation with Federalism implications and that preempts State law unless we consult with State and local officials early in the process of developing the proposed regulation.

This proposed 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, as specified in Executive Order 13132. The reason is that this proposed rule, if made final, would apply to motor vehicle manufacturers, and not to the States or local governments. Thus, the requirements of Section 6 of the Executive Order do not apply to this proposed rule.

Pursuant to Executive Order 12778, “Civil Justice Reform,” we have considered whether this proposed rule would have any retroactive effect. We conclude that it would not have such an effect.

Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

We have analyzed this proposal for the purposes of the National Environmental Policy Act and determined that it would not have any significant impact on the quality of the human environment.

NHTSA has determined that, if made final, this proposed rule would impose no “collection of information” burdens on the public, within the meaning of the Paperwork Reduction Act of 1995 (PRA). This rulemaking action would not impose any filing or recordkeeping requirements on any manufacturer or any other party. For this reason, we discuss neither electronic filing and recordkeeping nor a fully electronic reporting option by October 2003.

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

After conducting a search of available sources, we have determined that there is an applicable voluntary consensus standard. That standard is the International Standards Organization's (ISO) Standard 2575:2000. We are using the symbols in that standard in Table 1 and Table 2 of this NPRM.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal 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 in any one year (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if we publish with the final rule an explanation why that alternative was not adopted.

This proposal would not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector. Thus, this proposal is not subject to the requirements of sections 202 and 205 of the UMRA.

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:

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

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.

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

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

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

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

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

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

We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES . To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider it 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 Docket Management at the address given above under ADDRESSES . The hours of the Docket are indicated above in the same location.

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

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

2. On that page, click on “search.”

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

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

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

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) or you may visit http://dms.dot.gov.

In consideration of the foregoing, it is proposed that the Federal Motor Vehicle Safety Standards (49 CFR part 571), be amended as set forth below.

Under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. ), the United States has exclusive management authority over all living marine resources found within the EEZ. The management of these marine resources found within the EEZ with the exception of sea birds and some marine mammals, is vested in the Secretary of Commerce (Secretary). Eight Regional Fishery Management Councils prepare fishery management plans for approval and implementation by the Secretary. The Western Pacific Council has the responsibility to prepare fishery management plans for fishery resources in the EEZ of the Western Pacific Region, which include the Federal waters surrounding the CNMI.

NEPA requires preparation of an EIS for major Federal actions significantly impacting the quality of the human environment. Regulations implementing NEPA at 40 CFR 1502. 4(b) state:

The bottomfish fishery resources that occur in the EEZ waters surrounding CNMI are not currently managed under the Fishery Management Plan for the Bottomfish and Seamount Groundfish Fisheries of the Western Pacific Region (FMP), which was developed by the Council and approved by NOAA, becoming effective August 27, 1986 (51 FR 27413). There have been six amendments to the FMP since 1986, and recently, a comprehensive draft EIS describing the environmental effects of the existing fishery activities conducted under the FMP was developed. The draft EIS, which is currently being finalized for transmittal to NOAA, presents an overall picture of the existing management framework for the bottomfish resources occurring in the EEZ of the Western Pacific region.

In order for the bottomfish fishery resources in the EEZ of the CNMI to be managed under the FMP, an amendment to the existing FMP is required. The Council has recently adopted Amendment 8 to the FMP, which if approved, would allow the bottomfish resources in the EEZ waters of the CNMI to be managed under the FMP. Amendment 8 is currently being finalized for transmittal to NOAA.

The FMP provides a management framework for which the Secretary has promulgated corresponding regulations at 50 CFR 660.61. For example, if Amendment 8 is approved, the CFR regulations that would apply to the bottomfish fishery in the EEZ waters of CNMI include, among other things, gear restrictions (50 CFR 660.64) and vessel identification requirements (50 CFR 660.16)

The bottomfish fishery resources occurring in the EEZ waters of Guam are managed under the FMP. Recently, Guam's bottomfish fishery has experienced an increase in effort due to the entry and participation of large-scale vessels (> 50 ft)(15.2 m). This has concerned the Council for multiple reasons: (1) there is a lack of information regarding Guam's bottomfish fishery resources, (2) local catch rates might decline to levels not viable to support the small-vessel component of the fishery, (3) community participation in the fishery may be threatened, and (4) traditional patterns of supply for bottomfish products in the local markets may be disrupted.

These concerns prompted the Council to recommend the development of Amendment 9 to the FMP that would address the apparent increase in effort occurring in Guam's bottomfish fishery. An environmental assessment prepared for the amendment described the various management needs and options to effectively manage the fishery, in addition to the costs of no action. On June 12, 2003, the Council chose the preferred alternative which excludes large-scale vessels (> 50 ft)(15.2 m) from fishing for bottomfish within 50 nm of Guam, the implementation a permit system, and logbook reporting requirements. Reflecting the preferred alternative, Amendment 9 is currently being finalized for transmittal to NOAA.

For several years, there has been bottomfish fishing in the EEZ waters of CNMI. A significant portion of the effort in the CNMI's bottomfish fishery is from larger vessels (> 50 ft), which account for sixty percent of the total bottomfish landings in the CNMI.

As a response to the Council's development of Amendment 9, which addresses the emergence of large-scale vessels in Guam's bottomfish fishery, the CNMI is concerned that large-scale vessels displaced from Guam's bottomfish fishery will subsequently fish and exploit the nearby bottomfish resources in the EEZ waters around the CNMI. For this reason, the Council has recommended the development of a comprehensive EIS that describes various options for effective management of the bottomfish fishery around the CNMI.

The Council is scoping to establish a reasonable range of alternatives, which may include gear restrictions, limited access, closed areas, seasonal closures, permits and reporting requirements, and catch limits. In addition to developing possible alternatives, the scoping meetings will serve to identify and eliminate the issues which are not significant or which have been covered by prior environmental review.

Public scoping is an early and open process for determining the scope of issues to be addressed. A principle objective of the scoping and public involvement process is to identify a reasonable range of management alternatives that, with adequate analysis, will delineate critical issues and provide a clear basis for distinguishing between those alternatives and selecting a preferred alternative.

1. Tinian, CNMI — Wednesday, September 24, 2003, from 2-4 p.m. at the Tinian Gaming Commission Conference Room, San Jose, Tinian 96952.

2. Saipan, CNMI — Wednesday, September 24, 2003, from 7-9 p.m. at the Pedro P. Tenorio Multipursoe Building, Susupe, Saipan 96950;

3. Rota, CNMI — Thursday, September 25, 2003, from 1-3 p.m. at the Department of Lands and Natural Resources Building, Songsong, Rota 96951.

4. Agana, Guam - Friday, September 26, 2003, from 7-9 p.m. at the G. D. Perez Marina, Agana, Guam 96910.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, 808-522-8220 (voice) or 808-522-8226 (fax), at least five days prior to the meeting date.