Comments Invited

We invite you to send any written data, views, or arguments about this proposed AD. Send your comments to an address listed in the ADDRESSES section of this proposal. Include “Docket No. FAA-2010-0426; Directorate Identifier 2009-SW-34-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The EASA, which is the Technical Agent for the Member States of the European Community, has issued EASA AD No. 2006-0099, dated April 24, 2006, to correct an unsafe condition for the specified ECF model helicopters. EASA issued an AD following a case of separation and loss of a stainless steel ring (75 mm in diameter) from a blade sleeve resulting in severe, high-frequency vibrations, which can lead to damage to the fenestron blades, loss of yaw control, and subsequent loss of control of the helicopter.

You may obtain further information by examining the MCAI AD and any related service information in the AD docket.

Eurocopter has issued Alert Service Bulletin No. 05A011 for the Model EC 155B and B1 helicopters and No. 05.00.49 for the Model SA-365N1, AS-365N2, and AS 365 N3 helicopters. Both service bulletins are dated March 1, 2006. The service information specifies checking the blade sleeve for slippage of the stainless steel ring (75 mm in diameter) and replacing the blade if the stainless steel ring has slipped. The actions described in the MCAI AD are intended to correct the unsafe condition identified in the service information.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, their Technical Agent, has notified us of the unsafe condition described in the MCAI AD. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs. This proposed AD would require:

• For the Model SA-365N1, AS-365N2, and AS 365 N3 helicopters, within 50 hours time-in-service (TIS), unless done previously, and thereafter at intervals not to exceed 10 hours TIS, inspect each blade of the fenestron tail rotor to determine whether there has been any outward slippage (toward the shroud) of the stainless steel ring that is around the sleeve of each blade where the blade enters the fenestron hub.

• For the Model EC 155B or B1 helicopters, within 50 hours time-in-service (TIS), unless done previously, and thereafter at intervals not to exceed 15 hours TIS, inspect each blade for slippage of the fenestron tail rotor to determine whether there has been any outward slippage (toward the shroud) of the stainless steel ring that is around the sleeve of each blade where the blade enters the fenestron hub.

• If the stainless steel ring has slipped outward, before further flight, replace the blade with an airworthy blade.

We refer to flying hours as hours time-in-service. Also, we use “inspect” rather than “check” to describe the actions required by this AD. We use a different initial compliance time.

We estimate that this proposed AD would affect about 33 helicopters of U.S. registry. We also estimate that it would take about 15 minutes per helicopter to inspect for slippage of the stainless steel ring of the blade sleeve. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators would be $660 assuming none of the blades would have to be replaced.

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

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

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

Therefore, I certify this proposed AD:

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

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

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

We invite you to submit any written data, views, or arguments regarding this proposed AD. Send your comments to the address listed under the caption ADDRESSES . Include the docket number “FAA- 2010-0427, Directorate Identifier 2008-SW-72-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed rulemaking. Using the search function of our docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent or signed the comment. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

You may examine the docket that contains the proposed AD, any comments, and other information in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone (800) 647-5527) is located in Room W12-140 on the ground floor of the West Building at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On July 31, 1980, we issued AD 80-17-09, Amendment 39-3876 (45 FR 54014, August 14, 1980), Docket No. 80-ASW-25. That AD required replacing certain TT straps on or before attaining 1,200 hours TIS or 24 months, whichever occurs first, for the BHTI Model 204B, 205A-1, 212, 214B, 214B-1, and the Model UH-1 series military surplus helicopters. That action was prompted by an offshore accident of a BHTI Model 212 helicopter in which a TT strap reportedly failed in flight after 2,140 hours TIS with resulting loss of the main rotor blade. The requirements of that AD were intended to prevent failure of a TT strap, loss of a main rotor blade, and subsequent loss of control of the helicopter.

On September 18, 2002, we issued AD 2002-20-01, Amendment 39-12895 (67 FR 61771, October 2, 2002), Docket No. 2001-SW-41-AD, for the restricted category Model HH-1K, SW204, SW204HP, SW205, SW205A-1, TH-1F, TH-1L, UH-1A, UH-1B, UH-1E, UH-1F, UH-1H, UH-1L, and UH-1P helicopters to require updating the product identification, extending the applicability to other helicopter models, continuing the existing retirement time for certain TT straps, and adding the TT strap part numbers to the applicability. That action was prompted by the need to expand the applicability to additional restricted category helicopters and to add two part numbers to the applicability. The requirements of that AD are intended to prevent failure of a TT strap, loss of a main rotor blade, and subsequent loss of control of the helicopter. AD 2002-20-01 contains the requirements from AD 80-17-09 for the Model UH-1 series military surplus helicopters.

Since issuing AD 2002-20-01, we have determined that an unsafe condition exists if TT straps, BHTI part number (P/N) 204-012-112-5 or Bendix Energy Controls Co. (Bendix) P/N 2601399, with a serial number (S/N) of 41623 through 54362, or BHTI P/N 204-012-112-7 or Bendix P/N 2601400, with a S/N of 11415 or higher, are allowed to remain in service. These TT straps have stainless steel filament windings encased in a urethane cover and were manufactured using Caytur 21 as the urethane-curing accelerator. Caytur 21 contains chlorides which are retained in the urethane cover after cure resulting in corrosion problems with the encased steel wires. Those part-numbered TT straps made outside the affected S/N ranges were manufactured using a MOCA curing agent and do not pose the same aggravated corrosion problem.

An unsafe condition also exists if TT straps, P/N 204-011-113-1 or 204-012-112-1, are used beyond a certain number of hours TIS due to the possibility of fatigue cracks occurring in either the encased thin stainless steel plates or filament windings, respectively. These particular TT straps are of older designs and a reduced life in hours TIS is needed to preclude a fatigue failure. TT straps, P/N 204-011-113-1, have the encased stack of thin steel stainless plates. TT straps, P/N 204-012-112-1, have encased filament windings with a lower strength, smaller diameter wire and a different urethane coating which is more susceptible to react with the wire material than the other TT straps of the same design. Service history has shown that the retirement life for both TT straps, P/N 204-011-113-1 or 204-012-112-1, needs to be reduced.

We have also determined that an unsafe condition exists if certain other TT straps with encased stainless steel filament windings are allowed to remain in service beyond a specified calendar time or beyond a specified number of hours TIS. The calendar time retirement life is needed to prevent failure caused by corrosion. The hours TIS retirement life is needed to prevent a fatigue failure in the filament windings. In addition, a need exists to clarify the TT strap manufacturer, acknowledge the current Type Certificate owners, and add the model AH-1G and AH-1S helicopters to the applicability.

The previously described unsafe conditions are likely to exist or develop on other helicopters of the same type designs. Therefore, the proposed AD would supersede AD 2002-20-01 and require removing certain serial-numbered TT straps from service, replacing certain TT straps at specified intervals, revising the Airworthiness Limitations section of the maintenance manual or the Instructions for Continued Airworthiness (ICAs) by establishing new or maintaining current retirement lives for certain TT straps, and recording the life limit of the TT straps on the component history cards or equivalent records.

These proposed actions are based on the service history of certain TT straps manufactured with stainless steel filament windings or thin stainless steel plates encased in a urethane coating. TT strap failures have occurred in both types of TT straps. Some of the failures were attributed to undetected moisture penetration through the urethane coating which led to corrosion pitting in the stainless steel wires and subsequent fatigue failure of the TT strap. Other failures were attributed to fatigue cracking in the stainless steel plates or filament windings which led to a fatigue failure of the TT strap. A fatigue failure of the TT strap during flight will result in a loss of main rotor blade and subsequent loss of control of the helicopter.

We estimate that 716 helicopters of U.S. registry would be affected by this proposed AD, that it would take approximately 8 work hours per helicopter to replace a set of TT straps (2 TT straps), and that the average labor rate is $85 per work hour. Required parts would cost approximately $12,500 for 2 TT straps. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $329,500, assuming that 25 TT strap sets (50 TT straps) would be replaced.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. Additionally, this proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

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

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this proposed AD. See the AD docket to examine the draft economic evaluation.

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

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

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

Electronic Access and Filing

You may submit or access all comments received by the DOT online through http://www.regulations.gov. Electronic submission and retrieval help and guidelines are available on the Web site. It is available 24 hours each day, 365 days each year. Please follow the instructions. An electronic copy of this document may also be downloaded from the Office of the Federal Register 's home page at: http://www.archives.gov and the Government Printing Office's Web page at: http://www.access.gpo.gov/nara.

On December 21, 2007, at 72 FR 72574, the FHWA published in the Federal Register a final rule amending the MUTCD to include standards, guidance, options, and supporting information relating to maintaining minimum levels of retroreflectivity for traffic signs. The final rule was issued in response to section 406 of the Department of Transportation and Related Agencies Appropriations Act, 1993 (Pub. L. 102-388; October 6, 1992). Section 406 of this Act directed the Secretary of Transportation to revise the MUTCD to include a standard for minimum levels of retroreflectivity that must be maintained for traffic signs and pavement markings, which apply to roads open to public travel.

The FHWA is now proposing the establishment of minimum pavement marking retroreflectivity levels in the MUTCD. The FHWA has analyzed and considered technical research results as well as input from participants of FHWA-sponsored workshops (as discussed later in this document) and developed proposed minimum maintained pavement marking retroreflectivity levels for the MUTCD.

The FHWA sponsored research to establish recommended minimum pavement marking retroreflectivity levels. 1 This research included a literature review as well as the use of the latest visibility modeling techniques and tools. The findings of the literature review were used to establish criteria for key factors related to the visibility of pavement markings. Some of the major factors included in the study are shown below.

• Pavement marking configuration (3 levels: white dashed line left of the vehicle, yellow dashed line left of the vehicle, and yellow dashed line left of the vehicle with a solid white line right of the vehicle), 2

• Vehicle type (2 levels: passenger car, commercial truck),

• Vehicle speed (3 levels: 40, 55, and 70 mph),

• Pavement surface (2 levels: concrete, asphalt),

• Driver age (1 level: 62 years, which was the average age of the study participants used to establish the minimum sign retroreflectivity levels),

• Preview time (1 level: 2.2 seconds determined to be an absolute minimum for safe vehicle operations), and

• Pavement marking width (1 level: set at the nominal dimension of 4 inches for longitudinal pavement markings).

The visibility modeling outputs were used to generate research recommendations for minimum retroreflectivity levels for pavement markings. The recommendations were based on maintaining a minimum preview time of 2.2 seconds for nighttime drivers with visual capabilities of a typical 62-year-old driver.

The findings were then vetted through FHWA-sponsored workshops in the summer of 2007. 3 The workshops included participants from State and local agencies from around the country. The goal of the workshops was to obtain input from public agencies regarding efforts to establish a minimum retroreflectivity requirement for pavement markings.

In 2008, the FHWA developed a synthesis of the benefits of pavement markings, including safety studies, vehicle operations studies, and visibility-related studies. 4 While early landmark studies are referenced in the synthesis, the emphasis was directed to more recent studies offering new insights into the benefits of pavement markings that were previously undetectable (more data are now available for advanced analysis techniques). Regarding minimum pavement marking retroreflectivity, the synthesis shows that drivers judge pavement markings as being marginally adequate when retroreflectivity levels range from 80 to 130 mcd/m 2 /lux. The safety benefits of adding edgelines was demonstrated for nighttime conditions, low-visibility conditions, and highways with narrow pavement widths and low traffic volumes.

The synthesis also included a critical review of the results of a National Cooperative Highway Research Program (NCHRP) study which included the following language in the findings: “* * * the difference in safety between new markings and old markings during non-daylight conditions on non-intersection locations is approximately zero.”  5 The synthesis includes key concerns of the NCHRP study approach regarding inadequate samples of pavement markings with retroreflectivity levels at or near the proposed minimum retroreflectivity levels. It was concluded that the NCHRP study provides little if any information regarding the link between minimum pavement marking retroreflectivity and safety.

Finally, in anticipation of this NPA, the American Association of State Highway and Transportation Officials (AASHTO) developed a task force on minimum retroreflectivity for pavement markings. This task force prepared AASHTO Policy Resolution HW-07-18, dated January 24, 2008, and titled, “Minimum Levels of Retroreflectivity for Pavement Markings” that outlines their opinions. 6 The National Committee on Uniform Traffic Control Devices (NCUTCD) also developed MUTCD language for unspecified minimum levels of retroreflectivity for pavement markings and submitted that recommendation to FHWA. The NCUTCD recommendation did not include a table of values for minimum pavement marking retroreflectivity. 7

The goal of this NPA is to amend the MUTCD to include methods to maintain minimum pavement marking retroreflectivity and associated minimum maintained values for longitudinal pavement marking retroreflectivity. The FHWA seeks comment on the proposed changes to the Introduction, Section 1A.11 Relation to Other Publications, and new Section 3A.03 Maintaining Minimum Retroreflectivity of Longitudinal Pavement Markings.

1. In the Introduction, the FHWA proposes to add the STANDARD statement compliance dates for new Section 3A.03 Maintaining Minimum Retroreflectivity of Longitudinal Pavement Markings. The FHWA proposes a phase-in compliance period of 4 years from the date of Final Rule for implementation and continued use of a maintenance method that is designed to maintain pavement marking retroreflectivity at or above the established minimum levels and 6 years from date of the Final Rule for replacement of pavement markings that are identified using the maintenance method as failing to meet the established minimum levels. Considering the comments regarding budget cycles, particularly those of local agencies, that were received during the sign retroreflectivity rulemaking process, the FHWA believes that a 4-year compliance period for establishing and implementing a maintenance method that is designed to maintain pavement marking retroreflectivity at or above the established levels is appropriate. This compliance period will allow transportation agencies to make allowances for budgets (including working with the States or regional organizations to access funds and/or develop partnerships) to achieve the minimum levels of pavement marking retroreflectivity. The 6-year compliance period applies to the replacement of pavement markings that have been identified using a maintenance method as failing to meet the minimum retroreflectivity levels. The FHWA believes 6 years is appropriate because this allows time for agencies to prioritize how to spend limited resources on those pavement markings that should be replaced. Longer compliance replacement periods were provided for signs because retroreflective sign materials have longer service lives than pavement markings.

2. In Section 1A.11 Relation to Other Publications, the FHWA proposes to add the publication “Summary of the MUTCD Pavement Marking Retroreflectivity Standard” to the list of other publications that are useful sources. A draft version of this document is available on the docket. This draft publication is a supplemental document for informational purposes and the final version of this document will reflect any necessary changes made to this proposed rule and will be published and distributed by FHWA.

3. The FHWA proposes a new section titled, Section 3A.03 Maintaining Minimum Retroreflectivity of Longitudinal Pavement Markings. The FHWA proposes to include STANDARD, SUPPORT, GUIDANCE, and OPTION statements in this section that refer to maintaining minimum pavement marking retroreflectivity.

4. In the STANDARD statement, FHWA proposes to require that public agencies or officials having jurisdiction shall use a method designed to maintain retroreflectivity of white and yellow longitudinal pavement markings that are required or recommended in Sections 3B.01, 3B.04 or 3B.07 of the MUTCD at or above the minimum levels in proposed Table 3A-1. This proposed statement is very similar to the STANDARD statement adopted in the sign retroreflectivity final rule requiring the use of a maintenance method. 8

The FHWA received numerous comments during the sign retroreflectivity rulemaking process regarding the placement of retroreflectivity requirements in a STANDARD statement. The FHWA proposes to include the reference to minimum levels for pavement marking retroreflectivity in a STANDARD statement because the statute requires the Secretary to revise the MUTCD to include a standard for minimum levels of retroreflectivity that must be maintained for pavement markings. Under the MUTCD's current organization, the best way to do this is by including it in a STANDARD statement, because Standards represent requirements. 9

The intent of the proposed STANDARD statement is to establish minimum levels of nighttime pavement marking performance based on the visibility needs of nighttime drivers. Pavement markings excluded from the proposed STANDARD are not to be excluded from any other MUTCD standards. For instance, Section 3A.02 of the MUTCD already requires that pavement markings that must be visible at night shall be retroreflective unless ambient illumination assures that the markings are adequately visible.

5. As part of the STANDARD, the FHWA proposes a new table numbered and titled, “Table 3A-1 Minimum Maintained Retroreflectivity Levels for Longitudinal Pavement Markings.” The information in the table is based upon research conducted on pavement marking retroreflectivity in the report titled, “Updates to Research on Recommended Minimum Levels for Pavement Marking Retroreflectivity to Meet Driver Night Visibility Needs.”  10 The proposed table applies only to white and yellow longitudinal pavement markings on roads where they are required or recommended in Sections 3B.01, 3B.04 or 3B.07 of the MUTCD. In the MUTCD, standard statements are used to denote those items that are required, while guidance statements are used to denote items that are recommended. The MUTCD does not require or recommend pavement markings on all types of roads. Therefore, this proposed rulemaking applies to white and yellow longitudinal pavement markings, including temporary longitudinal pavement markings, on certain types of roads and on roads exceeding certain minimum volumes and/or widths that are described in standard and guidance statements in Sections 3B.01, 3B.04, or 3B.07 of the MUTCD. This includes center lines, lane lines, and edge lines, as described below.

Center line markings typically separate opposing traffic flows, such as the solid and/or broken yellow lines used to designate:

• Passing and no passing zones

• Two-way left turn lanes

• Reversible lanes

• Flush medians formed by yellow markings.

Center line markings are required or recommended by Section 3B.01 on:

(1) All paved urban arterials and collectors that have a traveled way of 20 feet or more in width and average daily traffic (ADT) of 4,000 vehicles per day or greater.

(2) All rural arterials and collectors that have a traveled way of 18 ft or more in width and an ADT of 3,000 vehicles per day or greater.

(3) All paved two-way streets or highways that have three or more lanes for moving motor vehicle traffic. This includes the one- or two-direction no-passing zone markings that separate two lanes in one direction from one lane in the other direction.

(4) Other traveled ways where an engineering study indicates such a need.

Lane line markings separate traffic flows in the same direction, such as the solid, broken, or dotted white lines used to separate more than one lane in a given direction, including turn lanes, through lanes, and preferential lanes.

Lane line markings are required or recommended by Section 3B.04 on:

(1) Freeways and Interstate highways.

(2) All roadways that are intended to operate with two or more adjacent traffic lanes that have the same direction of travel, except as otherwise required for reversible lanes.

(3) Congested locations where the roadway will accommodate more traffic lanes with lane line markings than without the markings.

Edge line markings are solid lines that delineate the right or left edge of a roadway, such as:

• Yellow left edge lines

• White right edge lines

• White channelizing lines that function in place of edge lines in delineating a gore, divergence, or obstruction that can be passed on either side by traffic in one direction.

Edge lines are required or recommended by Section 3B.07 on:

(1) Freeways

(2) Expressways

(3) Rural arterials and collectors with a traveled way of 20 ft or more in width and an ADT of 3,000 vehicles per day or greater.

(4) Paved streets and highways where an engineering study indicates a need for edge line markings.

The proposed retroreflectivity levels are measured at the standard 30-meter geometry and shown in units of millicandelas per square meter per lux (mcd/m 2 /lx). The proposed table addresses two types of pavement marking configurations: (1) Two-lane roads with centerline markings only, and (2) all other roads. Studies have shown that nighttime drivers report significantly shorter pavement marking visibility distances on roadways marked with only centerline markings versus roadways with both centerline and edge line markings. 11 Therefore, the proposed retroreflectivity levels are higher for two-lane roads with centerline markings only. In addition, visibility and safety studies indicate that visibility distance is increased and run-off-the-road crashes are decreased with the presence of edge line markings.

For each roadway type, the FHWA proposes minimum retroreflectivity values for two posted speed categories: (1) 35 to 50 mph, and (2) 55 mph and higher. Research shows that roadways with higher speed limits should have pavement markings with higher retroreflectivity levels in order to maintain adequate visibility in terms of preview time. 12 After considering workshop comments suggesting simplicity in the table, the FHWA believes that more than two speed categories may not be reasonable. The FHWA proposes the posted speed category of 55 mph and higher as the break point for higher speed roadways and thus higher minimum retroreflectivity levels because 55 mph represents a natural break point that will include nearly 70 percent of rural two-lane roadways in the United States. The FHWA proposes that minimum retroreflectivity values not apply on roads with posted speed limits 30 mph or less because low-beam headlight illumination provides sufficient visibility at these low speeds.

For both the two-lane roads with only centerline markings and all other roads, the FHWA proposes exceptions to the minimum retroreflectivity levels for pavement markings. When retroreflective raised pavement markers (RRPMs) supplement or substitute for a longitudinal pavement marking, the FHWA proposes that the minimum pavement marking retroreflectivity levels would not be applicable to that line as long as the RRPMs are maintained so that at least three are visible from any position along that line during nighttime conditions. The FHWA proposes this exception because when RRPMs are maintained they provide more roadway preview time than pavement markings alone. 13 The FHWA proposes that three RRPMs must be visible along a line, because research has shown that a minimum of three point sources of delineation is needed for drivers to estimate roadway alignment, particularly roadway curvature, as well as provide the necessary preview time based on roadway speed and typical application practices. 14 Sections 3B.13 and 3B.14 of the MUTCD include information regarding RRPMs supplementing or substituting for longitudinal pavement markings. The FHWA also proposes to exempt pavement markings from meeting minimum maintained retroreflectivity levels on roadways where continuous roadway lighting assures that the markings are visible, because Section 3A.02 of the MUTCD provides a similar exemption, which is appropriate and is not proposed to be changed. 15

The subject of the public hearing is the notice of proposed rulemaking (REG-134235-08) that was published in the Federal Register on Friday, March 26, 2010 (75 FR 14539).

Persons, who wish to present oral comments at the hearing that submitted written comments, must submit an outline of the topics to be discussed and the amount of time to be devoted to each topic (signed original and eight (8) copies) by Thursday, April 29, 2010.

A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing or in the Freedom of Information Reading Room (FOIA RR) (Room 1621) which is located at the 11th and Pennsylvania Avenue NW. entrance, 1111 Constitution Avenue, NW., Washington, DC.

Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this document.

This document proposes to take action on SIP revisions submitted by the Governor of New Mexico on behalf of the Albuquerque Environmental Health Department. We have published a direct final rule approving the State's SIP revisions in the “Rules and Regulations” section of this Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule.

If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based upon this proposed rule.

We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

This proposed rule could directly affect businesses that generate or manage unused commercial products that contain saccharin or its salts as the sole active ingredient. The wastes affected by this proposed rule are listed as EPA Hazardous Waste No. U202 ( see 40 CFR 261.33(f)). If finalized, these wastes will no longer be listed hazardous wastes. This action may also affect entities that need to respond to releases of these wastes as CERCLA hazardous substances, since saccharin and its salts will no longer be CERCLA hazardous substances. Persons in charge of vessels or facilities from which saccharin or its salts are released will no longer be required to immediately notify the National Response Center of the release under section 103 of CERCLA and will not be subject to the liability provisions under section 107 of CERCLA. The table below provides a guide for readers regarding entities that likely would be directly or indirectly affected by this action, based on the information available from the 2007 Biennial Report. 1

This action, however, may affect other entities not listed in the table. To determine whether your facility is affected by this action, you should examine 40 CFR parts 261, 268 and 302 carefully, along with the final regulatory language amending Chapter I of the Code of Federal Regulations (CFR). This language is found at the end of this Federal Register notice. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section entitled FOR FURTHER INFORMATION CONTACT .

Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information submitted on a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with the procedures set forth in 40 CFR part 2. For further information on the procedures for submitting CBI data, contact Ms. LaShan Haynes (5305W), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (e-mail address and telephone number: haynes.lashan@epa.gov, (703) 605-0516).

When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternative and substitute language for your requested changes.

• Describe any assumptions that you used and provide any technical information and/or data that you used.

• If you estimate potential burden or costs, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns and suggest alternatives.

• Explain your views as clearly as possible.

• Make sure to submit your comments by the comment period deadline identified.

EPA proposes these regulations under the authority of §§ 1006, 2002(a), 3001 and 3002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), as amended, by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6905, 6912(a), 6921 and 6922. These statutes combined are commonly referred to as the “Resource Conservation and Recovery Act” (RCRA) and will be referred to as such for the remainder of this action.

Section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9602, is the authority under which the CERCLA aspects of this rule are promulgated.

EPA is proposing to grant a petition submitted by the Calorie Control Council (CCC) under 40 CFR 260.20 to remove saccharin and its salts from the lists of hazardous constituents (40 CFR part 261, Appendix VIII), hazardous wastes (40 CFR 261.33(f)), and hazardous substances (40 CFR 302.4).

Under § 260.20, any person may petition the EPA Administrator to modify or revoke any provision in Parts 260 through 266, 267, 268, and 273 of 40 CFR. The CCC argued in a petition it submitted to EPA (which is included in the docket for this proposed rule) that the current scientific evidence, as viewed by key public health agencies, such as the National Toxicology Program (NTP) and the International Agency for Research on Cancer (IARC), does not support classifying saccharin as a potential human carcinogen, which was EPA's original basis for placing saccharin and its salts on its lists. EPA's evaluation of this petition considered the original basis for the listing, NTP's and IARC's more recent conclusions about the risk of carcinogenicity of saccharin and its salts, and other factors or criteria required for making a listing determination. Based on this evaluation, EPA has determined that saccharin and its salts do not present any significant risk to human health or the environment. Therefore, EPA is proposing to grant CCC's petition by proposing to remove saccharin and its salts from the lists of hazardous constituents (40 CFR part 261, Appendix VIII), hazardous wastes (40 CFR 261.33(f)), and hazardous substances (40 CFR 302.4).

EPA's analysis of whether or not to remove saccharin and its salts from its lists began with a review of the information in CCC's petition. This was followed by a review of the supporting information referred to in CCC's petition. The key supporting information for assessing the potential health risks from saccharin and its salts came from NTP and IARC. The NTP and IARC recently re-evaluated the available scientific evidence for saccharin and its salts and provided their findings on the carcinogenicity of these substances. ( See Section V.A.) Since EPA originally listed saccharin based solely upon the evidence that it is a potential human carcinogen, it was important to consider the recent findings of NTP and IARC. In addition, EPA considered all other factors that could cause it to list saccharin and its salts as hazardous wastes, as well as hazardous constituents (Appendix VIII of Part 261) and hazardous substances (Part 302).

EPA's regulations establish two ways of identifying solid wastes as hazardous wastes under RCRA. A waste may be considered hazardous if it exhibits certain hazardous properties (“characteristics”) or if it is included on a specific list of wastes that EPA has determined are hazardous (“listing” a waste as hazardous) because the Agency has concluded that they may pose a substantial present or potential hazard to human health or the environment if improperly managed. EPA's regulations in the Code of Federal Regulations (40 CFR) define four hazardous waste characteristic properties: Ignitability, corrosivity, reactivity, and toxicity ( see 40 CFR 261.21-261.24). As a generator, you must determine whether or not a waste exhibits any of these characteristics by testing, or by using your knowledge of the process that generated the waste ( see § 262.11(c)).

EPA “lists” wastes as hazardous if they meet the criteria set out in 40 CFR 261.11. The regulations at 40 CFR 261.31 through 261.33 contain the various hazardous wastes the Agency has listed to date. Under § 261.33(e) and (f), the Agency includes two lists of commercial chemical products or manufacturing chemical intermediates, or off-specification commercial chemical products or manufacturing chemical intermediates, that are hazardous wastes if and when they are discarded or intended to be discarded. The phrase “commercial chemical product or manufacturing chemical intermediate” refers to a chemical substance that is manufactured or formulated for commercial or manufacturing use, and consists of the commercially pure grade of the chemical, any technical grades of the chemical that are produced or marketed, and all formulations in which the chemical is the sole active ingredient.

The Agency lists a chemical in § 261.33(e) as an acutely hazardous waste if it meets the criteria in § 261.11(a)(2), which states that the waste “has been found to be fatal to humans in low doses or, in the absence of data on human toxicity, it has been shown in studies to have an oral LD 50 toxicity (rat) of less than 50 milligrams per kilogram, an inhalation LC 50 toxicity (rat) of less than 2 milligrams per liter, or a dermal LD 50 toxicity (rabbit) of less than 200 milligrams per kilogram or is otherwise capable of causing or significantly contributing to an increase in serious irreversible, or incapacitating reversible, illness.”

The Agency lists a chemical in § 261.33(f) as a hazardous waste if it meets the criteria in § 261.11(a)(1) and/or § 261.11(a)(3). Section 261.11(a)(1) requires that the waste “exhibits any of the characteristics of hazardous waste identified in subpart C.” Section 261.11(a)(3) requires that the waste contains hazardous constituents identified in 40 CFR part 261, Appendix VIII, and after considering a number of factors, “* * * the Administrator concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.” EPA places chemicals on the list of hazardous constituents in Appendix VIII “if they have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms.”

Whenever a hazardous waste or waste stream is identified or listed as hazardous under section 3001 of RCRA, it automatically becomes a hazardous substance under the statutory provisions of section 101(14) of CERCLA.

In 1980, as part of its final and interim final regulations implementing § 3001 of RCRA, EPA promulgated the lists of hazardous constituents (40 CFR part 261, Appendix VIII) and commercial chemical products or manufacturing chemical intermediates identified as hazardous wastes (40 CFR 261.33(f)) that included saccharin and its salts (45 FR 33084, May 19, 1980 and 45 FR 78532, November 25, 1980). The hazardous constituents listed in Appendix VIII were those which had been shown in scientific studies to have toxic, carcinogenic, mutagenic, or teratogenic effects on humans or other life forms, and included substances that had been identified by the Agency's Carcinogen Assessment Group (CAG). Saccharin was one of the constituents identified by CAG as a potential human carcinogen. The identification of saccharin by CAG, which lead to its inclusion in Appendix VIII of Part 261, is the sole reason the Agency listed saccharin as EPA Hazardous Waste No. U202 in 40 CFR 261.33(f). The Agency added “and salts” to the saccharin listing in the November 25, 1980 rulemaking, since normal commercial use includes both forms. The substances listed on 40 CFR 261.33(f) are commercial chemical products, manufacturing chemical intermediates, or off-specification commercial chemical products that are hazardous wastes if and when they are discarded or intended to be discarded.

Saccharin and its salts are included in 40 CFR 302.4 and designated as hazardous substances under section 102(a) of CERCLA, if they are listed under section 3001 of RCRA.

On April 30, 2003, the CCC submitted a rulemaking petition to EPA, under 40 CFR 260.20, seeking removal of saccharin and its salts from the lists of hazardous constituents (40 CFR part 261, Appendix VIII), hazardous wastes (40 CFR 261.33(f)), and hazardous substances (40 CFR 302.4). In the petition, CCC argued that the key public health agencies, such as NTP and IARC had recently concluded, based on the current scientific evidence, that saccharin is not a potential human carcinogen. CCC also argued that, since EPA listed saccharin and its salts on the lists of hazardous constituents, hazardous wastes, and hazardous substances based solely on their potential as human carcinogens, there is no longer any basis for EPA to continue to include saccharin and its salts on these lists, and, therefore, believe that they should be removed from these lists. To examine CCC's complete petition, see the docket for this proposed rule.

Saccharin is a white crystalline powder which is about 300 times sweeter than sucrose. It is typically available commercially either in the acid form (saccharin) or as salts (sodium saccharin or calcium saccharin). The use of the name saccharin has been applied to all three forms of this chemical. Saccharin and its salts are used primarily as non-nutritive sweeteners. The most common uses are in diet soft drinks, as a table-top sweetener, and in products, such as juices, sweets, chewing gum and jellies. They are also used in cosmetics ( e.g., toothpaste, mouthwash, and lipstick), pharmaceuticals ( e.g., for coatings on pills), and electroplating ( e.g., as a brightener in nickel-plating baths).

EPA listed saccharin and its salts on the lists of hazardous constituents (40 CFR part 261, Appendix VIII), hazardous wastes (40 CFR 261.33(f)), and hazardous substances (40 CFR 302.4) based solely upon the evidence that it is a potential human carcinogen. EPA's evaluation of CCC's petition includes consideration of the original basis for the listings in light of the most recent scientific evidence about the risk of carcinogenicity of saccharin and its salts. However, EPA has also evaluated the petitioner's requests against the listing criteria and factors that would need to be considered today under the regulations.

There have been numerous scientific studies conducted over the past several decades for the purpose of determining the toxicological effects, in particular carcinogenic effects, from the use of saccharin and its salts. The NTP and IARC have recently re-evaluated the available scientific information on saccharin and its salts relevant to its carcinogenic and other toxicological effects. In 1996, CCC submitted a nomination to (or petitioned) the NTP to consider removing saccharin from its Report on Carcinogens (ROC) “based upon mechanistic data related to development of urinary bladder cancers in rats.” NTP re-evaluated the available scientific information for saccharin and published its decision on CCC's petition in 2000, as part of its 9th ROC. In 1999, IARC published the results of its latest re-evaluation of the available scientific information for saccharin and its salts. The evaluations on the carcinogenicity and other toxicological effects of saccharin and its salts by NTP and IARC are summarized below. See the “NTP Report on Carcinogens Background Document for Saccharin” (which will now be referred to as NTP's Background Document) and part of the IARC Monographs Volume 73 concerning saccharin and its salts, which are included in the docket for this rulemaking. EPA believes it is appropriate to accept the saccharin evaluations performed by NTP and IARC. The NTP decision to delist saccharin from the ROC included scientific peer reviews, as well as public comment. IARC's evaluation on the carcinogenicity of saccharin and its salts provides additional support in EPA's assessment of CCC's petition.

NTP initially listed saccharin as “reasonably anticipated to be a human carcinogen” in its 2nd ROC, published in 1981, based on sufficient evidence, at that time, of carcinogenicity in experimental animals. Specifically, the listing was based on increased incidence of bladder tumors in experimental animals, especially male rats, when they were fed sodium saccharin. However, saccharin was removed, or delisted, by NTP in its 9th ROC, published in 2000. The delisting decision for saccharin was made on the basis of a formal review process adopted by NTP, which included two Federal and one non-government scientific peer review and public comment and review.

In the ROC and its background document, NTP summarized its evaluation supporting the decision to remove saccharin as “reasonably anticipated to be a human carcinogen” as follows:

The available epidemiology studies, according to NTP, mostly examined associations between urinary bladder cancer and artificial sweetners, rather than saccharin per se. The time trend data for bladder cancer from these studies were thought to be essentially noninformative with no clear indication that the increased use of saccharin or artificial sweetners, beginning in the 1940's, was associated with any general increase in bladder cancer when controlled for confounding factors, mainly smoking. NTP's decision to delist saccharin, as stated in the ROC, was as follows:

IARC first evaluated saccharin in 1980 and concluded the following:

In 1999, IARC presented its last re-evaluation, taking into consideration all new data on saccharin and its salts. It found that, based on a review of human studies on the carcinogenicity of artificial sweetners, that there is “no consistent pattern of dose-response relationship between use of artificial sweetners and cancers of the urinary bladder or lower urinary tract is apparent in the available literature.” The animal studies in rats with sodium saccharin did show urinary bladder tumors in the 2-generation studies. However, the incidence of bladder tumors was significant only at higher doses (greater than 3% of the diet). Based on this re-evaluation, IARC concluded the following:

In making its overall evaluation of the carcinogenic risk from saccharin and its salts, IARC stated the following:

In addition to the evaluation of information on saccharin's carcinogenicity, NTP's Background Document and IARC's 1999 re-evaluation (as presented in IARC Monograph Volume 73) included information and analysis on other toxicological effects of saccharin and its salts. Specifically, saccharin, in the form of sodium saccharin, has generally been tested in rats by feeding the rats diets containing specified amounts of sodium saccharin. It has not been found to be acutely toxic in rats based on the criterion for listing hazardous wastes under § 261.11(a)(2). The LD 50 values for sodium saccharin by oral administration in rats ranged from 14 g/kg (14,000 mg/kg) to 17 g/kg (17,000 mg/kg) of body weight, which is significantly higher than the oral LD 50 value for rats of less than 50 mg/kg specified under the listing criterion. A 2-generation feeding study in rats that were given 1% to 7.5% sodium saccharin in their diet indicated that a 1% dietary level (500 mg/kg of body weight) of sodium saccharin represented a no-effect level (NOEL). There was also no significant increase in the incidence of urinary bladder tumors at the 3% dietary level of sodium saccharin. Generally, the studies on mutagenicity, genotoxicity, developmental and reproductive toxicity using saccharin and sodium saccharin have shown negative results. For more detailed information and analysis on other toxicological effects of saccharin and its salts, see NTP's Background Document and IARC's 1999 re-evaluation in the docket for this proposed rule.

Saccharin and its salts are listed hazardous wastes, if the waste arises from the discard of a commercial chemical product, manufacturing chemical intermediate, or off-specification material (EPA Hazardous Waste No. U202 in 40 CFR 261.33(f)). The U-waste code applies only if the chemical is present in a pure or technical grade form, or is the sole active ingredient in the chemical formulation; in addition, the chemical must be unused.

The U202 listing is narrow and does not apply to other discarded materials that merely contain saccharin or its salts, e.g., discarded products that contain saccharin as a sweetening agent. Nor does the listing apply to manufacturing process wastes that may contain saccharin or its salts, except for unused or off-specification saccharin or its salts that are discarded. Therefore, U202 is primarily generated by companies that manufacture saccharin or its salts, use saccharin or its salts in product formulations ( e.g., soft drinks, cosmetics, pharmaceuticals), and by companies that are discarding small quantities of unused or off-specification saccharin or its salts, such as some laboratories.

Facilities are required by EPA to report the amount of hazardous waste, including U202 generated biennially (every two years) as part of the Biennial Report System, or BRS. Based on the information available from the BRS for the years 2001, 2003, 2005, and 2007, generators reported a total of 123 specific wastes listed as U202 during this time period (some generators reported multiple U202 wastes over the years in question). The total amount of U202 waste generated over this time period was 20 tons for all industries/NAIC Codes; for 2007, there were 4.1 tons of U202 reported for 29 separate wastes.

Most of the U202 wastes appear to be discarded unused or off specification material and “lab packs,” which package hazardous items for shipping and disposal. A limited number of other wastes are also reported, including contaminated debris/soil, organic and aqueous liquids, and other unidentified material. Although wastes were reported as “generated” by hazardous waste treatment, storage, and disposal facilities, the BRS data indicate that nearly all of these wastes were not generated onsite, but rather were received from offsite for storage/packing and subsequent transfer for treatment or disposal. To avoid counting wastes twice ( i.e., the reported wastes from the generator and again from the waste facility packing/transferring the waste), one can subtract out the amounts of waste reported by hazardous waste collection and treatment facilities. Removing the U202 wastes generated at these hazardous waste handling facilities gives a total of 14.7 tons generated from 2001 through 2007, and a total of 2.9 tons for 2007 alone. Therefore, the total quantity of U202 generated is quite small compared to the total volume of hazardous waste generated, both on an annual basis and over the course of four reporting years. 3

Saccharin and its salts were listed as hazardous waste under the criterion for listing given in 40 CFR 261.11(a)(3). Under this criterion, the Agency can list a waste if it contains any of the toxic constituents identified in 40 CFR part 261, Appendix VIII and, after considering a number of factors, the Agency concludes that the waste poses a “substantial present or potential hazard to human health or the environment” when improperly managed. The nature of the toxicity of a chemical contained in a waste is one of the factors to be considered in listing a waste as “toxic” ( see § 261.11(a)(3)(i)). The Agency cited toxicity as the “decisive” factor in listing commercial chemical products under § 261.33(f), because the waste is typically the chemical itself ( see EPA's Background Document for § 261.33, April 1981). Saccharin and its salts were listed as toxic constituents on Appendix VIII of part 261 and subsequently identified as hazardous wastes in § 261.33(f) based solely on their potential for carcinogenic effect in humans. Therefore, if the toxicological basis for listing saccharin and its salts on Appendix VIII of Part 261 is removed, then the basis for listing in § 261.33(f) no longer exists.

Other factors considered in listing a waste under § 261.11(a)(3) are related to the potential of the chemical to migrate if improperly managed, and include the chemical's persistence and accumulation potential. However, these other factors are not critical in a listing evaluation for commercial chemical products containing saccharin and its salts, because the low toxicity of these chemicals revealed in scientific studies, including a lack of potential carcinogenic effect in humans, means that any risk from a plausible management scenario ( e.g., disposal in a landfill) would not be sufficient to cause a substantial present or potential hazard. In addition, the quantity of waste generated from the discard of saccharin and its salts by individual facilities and on a nationwide basis (§ 261.11(a)(3)(viii)) is relatively small, as described previously, which further reduces any potential hazard that might arise from disposal of the waste. The generators are distributed across the nation, located in 42 different counties according to the BRS data, reducing the likelihood of significant codisposal in the same landfill.

Additionally, one of the other factors for EPA to consider is action taken by other governmental agencies and regulatory programs (§ 261.11(a)(3)(x)). These actions also demonstrate that saccharin and its salts do not present a substantial hazard. These actions include: (1) The determinations by NTP and IARC that saccharin is not a potential human carcinogen, as discussed previously; (2) the State of California's removal of saccharin and its salts from its list of chemicals known to cause cancer or reproductive toxicity (under its Safe Drinking Water and Toxic Enforcement Act of 1986, known as “proposition 65”)  4 ; and (3) the FDA's approval of a variety of uses of saccharin in food, cosmetics, and drugs, and elimination of the warning label on food containing saccharin. 5 Saccharin and its salts continue to be used widely as a non-nutritive sweetener in food products and are also used in products, such as toothpaste, mouthwash, chewing gum, confections, and pharmaceuticals.

Furthermore, as noted previously in section V.A.2., the information reviewed indicates that saccharin and its salts are not acutely toxic, and as such, they would not meet the criterion for listing hazardous wastes under § 261.11(a)(2). Moreover, saccharin and its salts do not meet the criterion under § 261.11(a)(1), because saccharin and its salts are not expected to exhibit any of the characteristics of hazardous waste, i.e., ignitability, corrosivity, reactivity, and toxicity, as described in 40 CFR 261.21 through 261.24.

Finally, the Agency needed to consider only one factor in listing saccharin and its salts as hazardous substances under CERCLA. Under the statutory provisions of section 101(14) of CERCLA, a hazardous waste that exhibits one or more of the hazardous waste characteristics or specifically is listed as a hazardous waste under RCRA becomes a hazardous substance under CERCLA. 6 As a result, saccharin and its salts were listed in 40 CFR 302.4 and designated as hazardous substances under section 102(a) of CERCLA. Therefore, if the U202 hazardous waste listing under RCRA is removed, there would be no basis for listing saccharin and its salts as hazardous substances under CERCLA.

EPA believes that saccharin and its salts, based on the results of the latest reviews of the available scientific information performed by NTP and IARC, do not pose a present or potential risk of causing toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms. This is because saccharin and its salts: (1) Are not found to be highly toxic in scientific studies; (2) are not reasonably expected to have carcinogenic effects in humans and carcinogenic effects in experimental animals ( i.e., rats) have been observed mainly at higher doses (greater than 3% of the diet) that cannot reasonably be expected to be available in the environment outside of laboratory conditions; and (3) are not reasonably expected to be mutagenic or teratogenic. Therefore, there is no basis for retaining saccharin and its salts as a hazardous constituent listed on Appendix VIII of Part 261.

EPA also believes that saccharin and its salts, based on a review of the evaluations conducted by NTP and IARC concerning the carcinogenic and other potential toxicological effects of saccharin and its salts, as well as EPA's own assessment of the waste generation and management information for saccharin and its salts, do not meet the criteria for listing them as hazardous wastes under 40 CFR 261.11. This is because saccharin and its salts: (1) Are not known to exhibit any of the characteristics of hazardous wastes identified in 40 CFR 261.21 through 261.24; (2) are not found to be acutely toxic in studies with animals; (3) are not found to be highly toxic in non-acute (longer-term) scientific studies; (4) are not discarded annually in a quantity which could reasonably be considered to pose a “substantial present or potential hazard to human health or the environment” when improperly treated, stored, transported, or disposed of, or otherwise managed; and (5) are not considered hazardous by other government agencies and regulatory programs. Therefore, there is no basis for retaining the listing for saccharin and its salts as a hazardous waste under 40 CFR 261.33(f).

EPA's listing of saccharin and its salts as hazardous substances under CERCLA (40 CFR 302.4) was based solely upon these substances being listed as U202 hazardous wastes under RCRA (40 CFR 261.33(f)). Therefore, since the Agency is proposing to remove saccharin and its salts as U202 listed hazardous wastes and saccharin and its salts are not designated or listed as hazardous substances on any of the other environmental statutes identified in section 101(14) of CERCLA that defines the term “hazardous substance,” there exists no basis for retaining saccharin and its salts on CERCLA's list of hazardous substances (40 CFR 302.4). Based on the above conclusions, EPA is proposing to grant CCC's petition to remove saccharin and its salts from the lists of hazardous constituents (40 CFR part 261, Appendix VIII), hazardous wastes (40 CFR 261.33(f)), and hazardous substances (40 CFR 302.4).

As discussed in the previous section, the Agency is proposing to remove saccharin and its salts from the list of commercial chemical products which are hazardous wastes when discarded or intended to be discarded (40 CFR 261.33(f)). These chemicals are specifically listed as RCRA Hazardous Waste No. U202 under 40 CFR 261.33(f). The regulations under 40 CFR part 268, prohibit the land disposal of RCRA hazardous waste unless they meet a certain level or have been treated by a technology specified by EPA prior to land disposal. See the table “Treatment Standards for Hazardous Wastes” in § 268.40. The land disposal restrictions (LDRs) only apply to solid wastes that are RCRA hazardous wastes. Therefore, if saccharin and its salts are removed from the list of hazardous wastes based on this proposal, they would not be subject to the LDRs. Therefore, EPA is also proposing to remove saccharin and its salts from the table “Treatment Standards for Hazardous Wastes” in § 268.40.

Under section 3006 of RCRA, EPA may authorize a qualified State to administer and enforce a hazardous waste program within the State in lieu of the Federal program, and to issue and enforce permits in the State. Following authorization, EPA retains enforcement authority under sections 3008, 3013, and 7003 of RCRA, although authorized States have primary enforcement responsibility. The standards and requirements for State authorization are found at 40 CFR part 271.

Prior to enactment of the Hazardous and Solid Waste Amendments of 1984 (HSWA), a State with final RCRA authorization administered its hazardous waste program entirely in lieu of EPA administering the Federal program in that State. The Federal requirements no longer applied in the authorized State, and EPA could not issue permits for any facilities in that State, since only the State was authorized to issue RCRA permits. When new, more stringent Federal requirements were promulgated, the State is obligated to enact equivalent authorities within specified timeframes. However, the new Federal requirements do not take effect in an authorized State until the State adopted the Federal requirements as State law.

In contrast, under RCRA section 3006(g), (42 U.S.C. 6926(g)), new Federal requirements and prohibitions imposed pursuant to HSWA authority take effect in authorized States at the same time that they take effect in unauthorized States. Although authorized States still are required to update their hazardous waste programs to remain equivalent to the Federal program, EPA is directed by the statute to implement the requirements and prohibitions in authorized States, including the issuance of new permits implementing those requirements, until EPA authorizes the State to do so.

Authorized States are required to modify their programs only when EPA promulgates Federal requirements that are more stringent or broader in scope than existing Federal requirements. RCRA section 3009 allows the States to impose standards more stringent than those in the Federal program. See also 40 CFR 271.1(i). Therefore, authorized States may, but are not required to adopt Federal regulations, both HSWA or non-HSWA, that are considered less stringent than previous Federal requirements.

This rule is promulgated pursuant to non-HSWA authority. The changes proposed in this rule are less stringent than the current Federal requirements. Therefore, States will not be required to adopt and seek authorization for these changes. EPA will implement the changes in this rule only in those States which are not authorized for the RCRA program. Nevertheless, EPA believes that this rule has considerable merit, and the Agency thus strongly encourages States to amend their programs and become Federally-authorized to implement this rule once it becomes final.

Section 101(14) of CERCLA defines the term “hazardous substance” as those substances designated or listed under several other environmental statutes and those substances designated by EPA as hazardous under CERCLA section 102(a). In particular, CERCLA section 101(14)(C) incorporates by reference any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act. CERCLA section 102(a) authorizes EPA to designate as hazardous those substances that, when released into the environment, may present substantial danger to the public health, welfare or the environment, and to establish the reportable quantity (RQ) for all CERCLA hazardous substances. CERCLA section 102(b) sets a RQ of one pound (statutory RQ) for hazardous substances, except those for which RQs have been established pursuant to section 311(b)(4) of the Clean Water Act (CWA). A list of CERCLA hazardous substances with their corresponding RQs is provided in Table 302.4 at 40 CFR part 302. CERCLA section 103 requires any person who releases a CERCLA hazardous substance in an amount equal to or greater than its RQ to report the release immediately to the National Response Center.

On April 4, 1985, EPA issued a final rule, “Notification Requirements, Reportable Quantity Adjustments; Final Rule and Proposed Rule” ( see 50 FR 13456). The final rule retained the statutory RQ of one pound for saccharin and its salts with a note that the final RQ is subject to change when the assessment of potential carcinogenicity and/or chronic toxicity is completed.

On March 16, 1987, EPA proposed to adjust the statutory RQ for saccharin and its salts to 100 pounds (45.5 kg) ( see 52 FR 8140), which EPA finalized on August 14, 1989 ( see 54 FR 33418). Saccharin and its salts, at the time of RQ adjustment, were classified as weight of evidence Group C, 7 potency Group 3  8 substances and received a “low” hazard ranking.

In this proposal, the Agency is proposing to remove saccharin and its salts from the list of CERCLA hazardous substances in conjunction with the removal of saccharin and its salts from the list of hazardous constituents (40 CFR part 261, Appendix VIII) and the list of commercial chemical products deemed hazardous waste (40 CFR 261.33(f)). With removal of the RCRA hazardous waste listing, the Agency does not have an independent basis upon which to retain saccharin and salts as CERCLA hazardous substances. That is, the Agency's designation of saccharin and its salts under section 102(a) was based solely upon its inclusion as a hazardous substance under section 101(14)(C) of CERCLA.

This action is not intended, and should not be inferred to affect the status of saccharin under any statute or program other than RCRA and CERCLA. The granting of CCC's petition does not remove saccharin from the EPCRA § 313 list, which requires annual reporting of environmental releases of toxic chemicals.

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Pursuant to the terms of Executive Order 12866, although the annual effect of this proposed rule is expected to be less than $100 million, the Agency has determined that this proposed rule is a significant regulatory action because it contains novel policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). In fact, EPA expects that the total annual respondent burden from this proposed rule would result in a net reduction in national annual paperwork burden to the affected facilities because of elimination of hazardous waste, and CERCLA hazardous substance reporting requirements. EPA also expects this rule to result in net annual cost savings to these same facilities from reduced waste management costs, by the expected shift of waste management from RCRA Subtitle C hazardous waste management, to RCRA Subtitle D nonhazardous waste management.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

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

This action is designed to lower the cost of waste management for affected entities, by removing saccharin and its salts from the lists of hazardous constituents and commercial chemical products which are hazardous wastes when discarded or intended to be discarded under RCRA and from the list of hazardous substances under CERCLA. We have therefore concluded that today's proposed rule will relieve regulatory burden for all affected small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or Tribal governments or the private sector. This is because this proposed rule imposes no enforceable duty on any State, local, or Tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule primarily affects generators of certain hazardous wastes from the discard of unused commercial products that contain saccharin and its salts. There are no State and local government bodies that incur direct compliance costs by this rulemaking. State and local government implementation expenditures are expected to be less than $500,000 in any one year. Thus, Executive Order 13132 does not apply to this action.

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

This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed rule does not significantly or uniquely affect the communities of Indian Tribal governments, nor would it impose substantial direct compliance costs on them. Thus, Executive Order 13175 does not apply to this rule.

This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in EO 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

This proposed rule is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This proposed rule reduces regulatory burden and should not adversely affect energy supply, distribution or use.

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 note) directs EPA to use voluntary consensus standards in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. EPA is committed to addressing environmental justice concerns and has assumed a leadership role in environmental justice initiatives to enhance environmental quality for all citizens of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, income, or net worth bears disproportionately high and adverse human health and environmental impacts as a result of EPA's policies, programs, and activities. Our goal is to ensure that all citizens live in clean and sustainable communities. In response to Executive Order 12898, and to concerns voiced by many groups outside the Agency, EPA's Office of Solid Waste and Emergency Response (OSWER) formed an Environmental Justice Task Force to analyze the array of environmental justice issues specific to waste programs and to develop an overall strategy to identify and address these issues (OSWER Directive No. 9200.3-17).

The Agency's assessment, based on the small quantity of saccharin and its salts that are estimated to be discarded by affected facilities and their relatively low toxicity, is that there is no significant risk to human health or the environment from managing saccharin and its salts in nonhazardous waste landfills (the plausible management scenario). As noted previously in section V.B.2., the facilities that generate these small quantities of waste are distributed across the nation, which makes it unlikely that any one segment of the population would be impacted disproportionately from management of this nonhazardous waste. However, the Agency continues to be interested in any potential environmental justice concerns as a result of this proposed rule and welcomes comments on issues related to such concerns.

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

This is a summary of the Federal Communication Commission's Notice of Proposed Rulemaking (NPRM) in WP Docket No. 10-72, FCC 10-45, adopted on March 18, 2010, and released on March 24, 2010. This document is available to the public at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-45A1.doc.

1. In this NPRM, the Commission proposes to amend its amateur radio service rules with respect to amateur radio operations during government-sponsored emergency preparedness and disaster readiness drills and tests. Although public safety land mobile radio systems are the primary means of radio-based communications for emergency responders, experience has shown that amateur radio has played an important role in preparation for, during, and in the aftermath of, natural and man-made emergencies and disasters. Current rules provide for amateur radio use during emergencies. At the same time, the rules prohibit communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer. While there are some exceptions to this prohibition, there is none that would permit amateur station control operators who are employees of public safety agencies and other entities, such as hospitals, to participate in drills and tests in preparation for such emergency situations and transmit messages on behalf of their employers during such drills and tests. Accordingly, the Commission proposes to amend the rules to provide that, under certain limited conditions, amateur radio operators may transmit messages during emergency and disaster preparedness drills, regardless of whether the operators are employees of entities participating in the drill.

2. One of the fundamental principles underlying the amateur radio service is the “[r]ecognition and enhancement of the value of the amateur service to the public as a voluntary noncommercial communication service, particularly with respect to providing emergency communications.” 47 CFR 97.1(a). Further, the rules state that “[n]o provision of these rules prevents the use by an amateur station of any means of radio communication at its disposal to provide essential communication needs in connection with the immediate safety of human life and immediate protection of property when normal communication systems are not available.” 47 CFR 97.403. Indeed, amateur radio operators provide essential communications links and facilitate relief actions in disaster situations. While land mobile radio services are the primary means of conducting emergency communications, amateur radio plays a unique and critical role when these primary facilities are damaged, overloaded, or destroyed. For example, during Hurricane Katrina, amateur radio operators volunteered to support many agencies, such as the Federal Emergency Management Agency, the National Weather Service, and the American Red Cross. Amateur radio stations provided urgently needed wireless communications in many locations where there was no other means of communicating and also provided other technical aid to the communities affected by Hurricane Katrina.

3. Since amateur radio is often an essential element of emergency preparedness and response, many state and local governments and public safety agencies incorporate amateur radio operators and the communication capabilities of the amateur service into their emergency planning. In this regard, some entities, such as hospitals, emergency operations centers, and police, fire, and emergency medical service stations, have emphasized the participation of their employees who are amateur station operators in emergency and disaster drills and tests. For example, a representative of the New Orleans Urban Area Security Initiative recently emphasized the importance of conducting emergency drills and the need for amateur participation.

4. The Commission's rules expressly permit operation of amateur stations for public service communications during emergencies, and on a voluntary basis during drills and exercises in preparation for such emergencies. Given, however, that the Amateur Radio Service is primarily designated for “amateurs, that is, duly authorized persons interested in radio technique solely with a personal aim and without pecuniary interest,” see 47 CFR 97.3(a)(4), the rules expressly prohibit amateur stations from transmitting communications “in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer.” See 47 CFR 97.113(a)(3). Accordingly, public safety entities seeking to have employees operate amateur stations during government-sponsored emergency preparedness and disaster drills presently must request a waiver.

5. The Commission seeks comment on whether to amend the rules to permit amateur radio operators to participate in government-sponsored emergency and disaster preparedness drills and tests, regardless of whether the operators are employees of the entities participating in the drill or test. The rules already recognize the importance of amateur radio in emergencies, and permit participation in such drills and tests by volunteers ( i.e., non-employees of participating entities). As noted above, experience has shown that amateur operations can and have played an essential role in protecting the safety of life and property during emergency situations and disasters. And as evidenced by recent waiver requests, state and local government public safety agencies and other entities often conduct disaster and emergency preparedness drills to be best-prepared for such eventualities. The proposed rule would obviate the need for a waiver in such instances by allowing employees of public safety agencies and other entities to operate amateur stations for testing and drilling of emergency communications preparedness. The Commission thus tentatively concludes that employee status should not preclude or prevent participation in government-sponsored emergency and disaster tests and drills. Further, the Commission tentatively concludes that extending authority to operate amateur stations during such drills will enhance emergency preparedness and thus serve the public interest.

6. In reaching these tentative conclusions, the Commission does not disturb the core principle of the amateur radio service as a voluntary, non-commercial communication service carried out by duly authorized persons interested in radio technique with a personal aim and without pecuniary interest. Rather, the Commission believes that the public interest will be served by a narrow exception to the prohibition on transmitting amateur communications in which the station control operator has a pecuniary interest or employment relationship, and that such an exception is consistent with the intent of the amateur radio service rules. Accordingly, the Commission proposes that amateur operations in connection with emergency drills be limited to the duration and scope of the drill, test or exercise being conducted, and operational testing immediately prior to the drill, test or exercise.

7. Furthermore, the Commission proposes that the emergency tests and drills must be sponsored by Federal, State, or local governments or agencies, in order to limit the narrow exception to ensure that drills further public safety. The Commission notes, however, that there may be circumstances where conducting emergency drills for disaster planning purposes, even if not government-sponsored, would serve the public interest. Accordingly, the Commission seeks comment on whether it should permit employee operation of amateur stations during non-government-sponsored emergency drills, if the purpose of the drill is to assess communications capabilities, including amateur radio, in order to improve emergency preparedness and response.

8. A large number of agencies and organizations at the state and local levels coordinate with their local volunteer amateur radio operators to conduct drills and exercises in concert with other modes of communication. This joint activity is essential to allow for a practiced response on the part of the first responder community. Because some of those drills and exercises include transmission of amateur communications by employees of participating entities, the Commission believes the proposed rule changes would be in the public interest, consistent with ongoing national emergency preparedness and response priorities. The Commission therefore seeks comment on the tentative conclusions contained herein.

9. This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. Other requirements pertaining to oral and written presentations are set forth in section 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

10. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. All filings related to this Notice of Proposed Rulemaking should refer to WP Docket No. 10-72. Comments may be filed using: (1) the Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

11. Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the website for submitting comments.

12. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

13. Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

14. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

15. Effective December 28, 2009, all hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

Please Note: The Commission's former filing location at 236 Massachusetts Avenue, NE. is permanently closed.

16. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

17. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554.

18. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

19. The Regulatory Flexibility Act (RFA) requires an initial regulatory flexibility analysis to be prepared for notice and comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

20. Because “small entities,” as defined in the RFA, are not persons eligible for licensing in the amateur service, this proposed rule does not apply to “small entities.” Rather, it applies exclusively to individuals who are the control operators of amateur radio stations. Therefore, we certify that the proposals in this Notice of Proposed Rulemaking, if adopted, will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the Notice of Proposed Rulemaking, including a copy of this Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA. This initial certification will also be published in the Federal Register.

21. Accordingly, it is ordered, pursuant to sections 4(i), 303(r), and 403 of the Communications Act of 1934, 47 U.S.C. 154(i), 303(r), and 403, that this Notice of Proposed Rulemaking is hereby adopted.

22. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons set forth in the preamble, FCC proposes to amend 47 CFR part 97 as follows:

DoD is proposing to amend the DFARS to implement section 207 of the Weapons System Acquisition Reform Act of 2009 (WSARA) (Pub. L. 111-23). Section 207 requires DoD to revise the DFARS to provide uniform guidance and tighten existing requirements for organizational conflicts of interest (OCIs) by contractors in major defense acquisition programs. The law sets out situations that must be addressed and allows DoD to establish such limited exceptions as are necessary to ensure that DoD has continued access to advice on systems architecture and systems engineering matters from highly qualified contractors, while ensuring that such advice comes from sources that are objective and unbiased.

In developing regulatory language, DoD is directed to consider the recommendation presented by the Panel on Contracting Integrity. DoD has reviewed the provisional recommendations of the Panel in the formation of this proposed rule and will consider the final recommendations of the Panel in the formation of the final rule. DoD must also consider any findings and recommendations of the Administrator of the Office of Federal Procurement Policy (OFPP) and the Director of the Office of Government Ethics (OGE) pursuant to section 841(b) of the Duncan Hunter National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2009 (Pub. L. 110-417). Section 841(b) of the NDAA for FY 2009 required review by OFPP, in consultation with OGE, of FAR coverage of OCIs. Neither OFPP nor OGE has issued recommendations to date pursuant to section 841, but are working with the FAR Acquisition Law Team, which includes representatives from DoD and the civilian agencies, to draft a proposed rule under FAR Case 2007-018. As part of this process, OFPP, OGE, and the Team are reviewing comments received in response to an Advance Notice of Proposed Rulemaking, published in the Federal Register at 73 FR 15962 on March 26, 2008.

A public meeting was held on December 8, 2009 ( see 74 FR 57666) to provide opportunity for dialogue on the possible impact on DoD contracting of the section 207 requirements relating to OCIs. In the formation of this proposed rule, DoD considered the comments provided at the public meeting, as well as other unsolicited comments received from the public. Various presenters at the public meeting (1) Expressed a desire for policy and regulation to emphasize the importance of using mitigation strategies to address OCIs, (2) sought a more consistent approach within the Government to resolve OCIs, and (3) voiced a strong interest in ensuring any rule is published for comment prior to taking effect.

To implement section 207 and its call for the tightening of existing OCI requirements effectively, DoD felt it was necessary to review the FAR's coverage on OCIs in subpart 9.5 carefully. FAR subpart 9.5 is intended to provide the foundational principles and processes for identifying and addressing OCIs. At the same time, FAR subpart 9.5 is essentially unchanged from the days when the coverage was located in an appendix to the Defense Acquisition Regulation (DAR). The existing FAR coverage relies primarily upon examples to describe OCI; some in the contracting community incorrectly thought the examples in FAR 9.505 contained the universe of conflicts. Further, the existing FAR coverage does not provide any standard provisions or clauses addressing OCIs, and the requirements of FAR subpart 9.5 were often overlooked by the contracting community.

DoD has concluded from its review that—

• The many decisions issued in the past 15 years by the Government Accountability Office (GAO) and the Court of Federal Claims (CoFC) on OCIs should be reflected in any updated coverage;

• The coverage of OCIs should be better organized and relocated to a new subpart 203.12 to be addressed along with improper business practices and personal conflicts of interest;

• Standard provisions and clauses will be beneficial, as long as there is opportunity for contracting officers to tailor the provisions and clauses for particular circumstances, as appropriate; and

• Expanding coverage to address unique issues associated with task and delivery order (indefinite-delivery/indefinite-quantity) contracts is also useful.

DoD proposes to use DFARS subpart 203.12 in lieu of the present FAR subpart 9.5. However, when the FAR is revised, pursuant to the section 841(b) review, to incorporate broader OCI changes, DoD will follow the FAR and revise the DFARS to address only those aspects of OCIs that relate specifically to major defense acquisition programs.

202.101 Definition: Adding a new definition of “organizational conflict of interest” refers to the types of conflicts first defined in Aetna Government Health Plans (B-254397, July 27, 1995). Further details necessary to identify conflicts are contained in section 203.1204, entitled Types of organizational conflicts of interest. DoD believes it would be more useful to the contracting community if these details are in subpart 203.12 instead of in the part 202 definition.

203.1200 Scope. This section is comparable to the scope statement at FAR 9.500(a); however, there are meaningful differences between the proposed and current coverage. The proposed coverage adopts principles from case law to define conflicts rather than relying primarily on examples. This proposed section continues to implement section 8141 of the National Defense Appropriations Act for Fiscal Year 1989 (Pub. L. 100-463), which was codified as 41 U.S.C. 405b.

203.1201 Definitions.

The proposed new coverage includes the following definitions:

• Contractor, clarifying that the entire contractor organization is included when protecting against OCIs. GAO stated in its decision on Aetna Government Health Plans, supra, that there is no basis to distinguish between a firm and its affiliates, at least where concerns about potentially biased ground rules and impaired objectivity are at issue. ( See ICF Inc., B-241372, February 6, 1991.)

• Firewall, one of the techniques to mitigate an OCI.

• Resolve, explaining that there are ways to acquire needed goods and services and also address OCIs.

Unlike current FAR subpart 9.5., the proposed DFARS coverage does not include a definition of “marketing consultant” because the coverage is expanded beyond contracts only for marketing consultants.

203.1202 Applicability. DoD proposes that this rule should continue to apply to contracts with both profit and nonprofit organizations (current FAR 9.502(a)).

DoD addresses the applicability of part 12, proposing that, except for commercially available off-the-shelf (COTS) items, the rule should also apply to acquisitions of commercial items. DoD made this determination, in part, based on the belief that the acquisition of commercial services might not be free from OCI concerns.

203.1203 Policy. DoD proposes including a policy statement that reflects the harm that can be caused by OCIs. It is, therefore, the policy of DoD to protect its interests by identifying and resolving OCIs. It is also DoD policy that mitigation is generally the preferred method of resolution.

203.1204 Types of organizational conflicts of interest. This section explains the three types of OCIs as recognized by the GAO and the Court of Federal Claims—

• Impaired objectivity;

• Unfair access to non-public information; and

• Biased ground rules.

The section organizes OCIs by type of conflict of interest, rather than type of task. However, an example taken from section 9.505 of the FAR is provided for each type of OCI. DoD believes that the expanded explanation reflecting the tenets from case law will improve contracting officers' understanding of OCIs and their ability to both identify them and to work with contractors to address them. This approach should also help to address the criticism made by some that contracting officers believe no OCI exists when a contract differs from the examples listed in FAR subpart 9.5.

“Unfair access to non-public information” is one of the three types of conflicts discussed in section 203.1204. Different sources sometimes refer to “unfair access to data.” DoD selected the term “information” because it is (a) broader than “data,” which is defined in the FAR clause at 52.227-14, Rights in Data—General, to mean recorded information, and (b) used most frequently in case law. The section also includes a statement that natural competitive advantages are not conflicts which contracting officers are required to resolve.

203.1205 Contracting officer responsibilities. This section addresses comments from several respondents to the Advance Notice of Proposed Rulemaking that the section on contracting officer responsibilities in current FAR subpart 9.5 does not encompass all the contracting officer responsibilities with regard to OCIs. Rather, these responsibilities are spread throughout the current subpart. One respondent requested that the coverage provide better direction to contracting officers to ensure more predictable results, and to ensure that the contracting officer roles and responsibilities are identified and fulfilled.

203.1205-1 General. This subsection uses the principles in the current FAR 9.504 to set forth the overarching responsibilities of contracting officers, which are to identify and evaluate OCIs prior to contract award, using common sense and good judgment, and the DoD preference for mitigation.

203.1205-2 Identification of OCIs. This new subsection provides specific guidance on the identification of OCIs and introduces the differences between a potential OCI and an actual OCI. The subsection segregates the solicitation phase of acquisitions from the evaluation phase.

In the solicitation phase of the process, contracting officers must examine the nature of the work to determine whether it may create a conflict, applying the principles in the new section 203.1204. Subsection 203.1205-2 requires that a statement be placed in the file documenting a finding of no conflicts. This subsection also provides that contracting officers should obtain the assistance of the program office, appropriate technical specialists, and legal counsel to identify potential conflicts of interest.

During the evaluation phase, contracting officers are required to examine the financial interests of the offerors to determine whether there is a conflict of interest. However, contracting officers are cautioned not to rely solely on information provided by the offeror in making this determination. Other sources of information are identified in this subsection.

Overlook Systems Technologies, B-298099.4, B-298099.5, November 28, 2006, held that communications regarding OCI do not constitute discussions. Implementation of Overlook means that, even in a sealed bidding situation, it is possible to converse about an OCI mitigation plan to arrive at an acceptable solution without such conversation being considered to be “discussions.” It should be noted that Overlook's holding on communications only applies when OCI is an eligibility factor, which is accomplished by the provision at 252.203-70XX, Notice of Potential Organizational Conflicts of Interest.

203.1205-3 Resolution of organizational conflicts of interest. This section covers the three methods of resolution: avoidance, limitation on future contracting (neutralization), and mitigation. It addresses a response to the Advance Notice of Proposed Rulemaking that requested more coverage regarding resolution. The new coverage replaces the phrase “neutralization” with the phrase “limitation on future contracting” for purposes of clarity.

To assist the contracting officer in fashioning an appropriate resolution, subsection 203.1205-3 describes the methods of resolution and provides illustrative examples (many of which are taken from case law) of each method. These examples are not intended to be all-inclusive lists. The subsection also makes it clear that a combination of resolution methods may be appropriate in some circumstances.

It is not uncommon for a company to have both advisory and production (or implementation) capabilities, and for such dual capabilities to raise potential conflict of interest concerns. The rule requires that such conflicts be addressed adequately to protect the Government's interest, but also provides that careful consideration be given to the manner in which conflicts are resolved. In particular, the rule restricts use of the avoidance method to exclude a class of contractors unless no less restrictive approach will protect the interests of the Government adequately.

203.1205-4 Waiver. The proposed DFARS 203.1205-4 addresses the use of waivers. The coverage in current FAR subpart 9.5 is carried over. The proposed rule also makes it clear that waivers should be for residual conflicts that exist after all the techniques of resolution have been attempted to lessen a conflict.

The proposed rule provides that waivers cannot be used in a competitive situation unless the solicitation specifically informed offerors that the Government reserves the right to waive the requirement to resolve an OCI. The reservation of the right to waive these requirements is incorporated in paragraph (i) of the provision at 252.203-70XX, Notice of Potential Organizational Conflict of Interest, and implements a fundamental tenet that awards must be made using the evaluation factors stated in a solicitation.

203.1205-5 Award. The proposed rule establishes that—

(1) The contracting officer shall award the contract to the apparent successful offeror only if all organizational conflicts of interest are resolved (with limited exceptions);

(2) Establishes what specific actions shall be taken if a contracting officer determines that award should be withheld from the apparent successful offeror based on conflict of interest considerations; and

(3) If an organizational conflict of interest is identified at the time of task or delivery order contract award, the contracting officer shall include a resolution plan (mitigation plan, or limitation on future contracting) in the basic contract.

DoD proposes to address in this subsection the unique OCI concerns created by task and delivery order contracts. The confluence of OCI concerns and task or delivery order contracting principles affects single-award and multiple-award task and delivery order contracts differently, resulting in a different balance between the need to resolve OCIs at time of award and timing of knowing the actual requirement.

For multiple-award task or delivery order contracts (against which other agencies may place orders and for GSA Schedules), the contracting officer for the ordering agency may determine that an organizational conflict of interest precludes award of an order unless a Government-approved resolution plan (mitigation plan or limitation on future contracting) is incorporated into the order. The contracting officer placing the order is responsible for administering the plan.

203.1206 Solicitation provision and contract clauses. DoD used the requirements currently in FAR 9.506 and 9.507 as the basis for the new provision and clauses on OCI. DoD determined that it was preferable to have a provision and clauses that can be tailored rather than providing no provision or clauses. Recognizing the variability among OCIs, DoD recommends the provision and clauses be prescribed “substantially the same as” so that contracting officers can tailor them, as appropriate. Further, the provision contains specific fill-ins that the contracting officer is required to complete, and the actual OCI mitigation plan is referenced in 252.203-70YY, Resolution of Organizational Conflicts of Interest.

Section 203.1270 specifically implements section 207 of WSARA. It cites the definition of “lead system integrator” in the clause at 252.209-7007, cites the definitions of “major defense acquisition program” in 10 U.S.C. 2430, cites the definition of “major subcontractor” in the new proposed clause at 252.203-70WW, Organizational Conflict of Interest—Major Defense Acquisition Program, and bases the definitions of “systems engineering” and “technical assistance” on the discussion of systems engineering and technical direction at FAR 9.505-1.

The policy section at 203.1270-3 is based on sections 207(b)(4) and (b)(2) of WSARA.

Limitations on lead system integrators as required by 207(b)(1)(A) of WSARA are already incorporated in the DFARS at 209.570, and the associated clauses in 252.209.

Section 203.1270-5 on identification of OCIs provides considerations of situations in which OCIs must be addressed, as specified in section 207(b)(1)(B) through (D) of WSARA.

Section 203.1270-6(a) sets forth the restrictions on systems engineering and technical assistance contracts that are required by section 207(b)(3) of WSARA. With some exceptions, a contract for systems engineering and technical assistance for a major systems defense acquisition program shall prohibit the contractor or any affiliate of the contractor from participating as a contractor or major subcontractor in the development or construction of a weapon system under such program.

Exceptions are proposed in paragraph 203.1270-6(b), as authorized in paragraph (b)(4) of WSARA. The first exception is based on the exception for design and development work in accordance with FAR 9.505-2(a)(3), FAR 9.505-2(b)(3), or preparation of work statements in accordance with FAR 9.505-2(b)(1)(ii).

The other exception is an exception for a contractor that is highly qualified with domain experience and expertise, if the OCI can be adequately resolved in accordance with the new proposed coverage at 203.1205-3.

Although authorized by section 207(b)(4) of WSARA, this rule does not propose any exceptions to the requirement of 207(b)(2) that a contractor for the performance of systems engineering and technical assistance functions for a major defense acquisition program receive advice from a federally funded research and development center or other sources independent of the prime contractor (implemented in the policy section 203.1270-3).

Section 203.1270-7 proposes an additional solicitation provision and contract clause for use in solicitations and contracts for systems engineering and technical assistance for major defense acquisition programs. This solicitation provision and clause are used in conjunction with the other appropriate OCI provisions and clauses prescribed at 203.1206.

• 252.203-70VV, Notice of Prohibition Relating to Organizational Conflict of Interest—Major Defense Acquisition Program. This provision notifies the offerors that this solicitation is for the performance of systems engineering and technical assistance for a major defense acquisition program. It states the prohibition as required by paragraph (b)(3) of section 207, but provides the opportunity for offerors to request an exception.

• 252.203-70WW, Organizational Conflict of Interest—Major Defense Acquisition Program. This clause defines “major subcontractor” and repeats the prohibition from section 207(b)(3) of WSARA, which is in effect unless an approved OCI mitigation plan has been submitted and incorporated into the contract. Compliance with the OCI mitigation plan is a material requirement of the contract.

• 252.203-70XX, Notice of Potential Organizational Conflict of Interest. This provision—

○ Provides a definition of “organizational conflict of interest;”

○ Places offerors on notice that the contracting officer has identified a potential OCI and makes resolution of an OCI (or waiver) an eligibility requirement for award;

○ Requires the contracting officer to describe the nature of the potential conflict of interest and any steps the Government has taken to lessen the conflict;

○ Requires an offeror to disclose all relevant information regarding an OCI, or to represent, to the best of its knowledge and belief, that there is no OCI.

○ Regardless of whether the offeror discloses the existence of an OCI, the offeror must describe any other work performed on contracts and subcontracts within the past five years that is associated with the offer it plans to submit.

○ Requires an offeror to explain the actions it intends to use to resolve any OCI, e.g., submit an acceptable mitigation plan if an actual OCI exists or agree to a limitation on future contracting;

○ Indicates the clauses that may be included in the resultant contract depending upon the type of resolution;

○ Indicates that failure to disclose facts regarding an OCI could result in a termination for default of any resulting contract; and

○ Reserves the right to waive the requirement to resolve an OCI.

• 252.203-70YY, Resolution of Organizational Conflicts of Interest. This clause is to be used generally when the contract may involve an OCI that can be resolved by an acceptable contractor-submitted mitigation plan prior to contract award. The clause—

○ Provides definitions of “contractor” and “organizational conflict of interest;”

○ Incorporates the mitigation plan in the contract;

○ Addresses changes to the mitigation plan;

○ Addresses violations of the mitigation plan;

○ Addresses breach of the provisions of the clause; and

○ Requires flowdown of the clause.

• 252.203-70YZ, Limitation of Future Contracting. This clause will be used when the contracting officer decides to resolve a potential conflict of interest through a limitation on future contracting. The contracting officer must fill in the nature of the limitation on future contractor activities. Although the clause contains a default time period of three years, this time period may be modified as long as the duration is sufficient to avoid unfair competitive advantage or potential bias.

• 252.203-70ZZ, Disclosure of Organizational Conflict of Interest After Contract Award. DoD recognizes that events may occur during the performance of a contract that give rise to a new conflict. Examples of such events could be a novation or the acquisition of a business interest. This clause, which is included in solicitations and contracts when the solicitation includes the provision 252.203-70XX, Notice of Potential Organizational Conflicts of Interest, requires the contractor to make a prompt and full disclosure of any newly discovered OCI.

Part 212—Acquisition of Commercial Items. The proposed rule requires use of the provisions and clauses in contracts for the acquisition of commercial items (other than COTS items). The rule also notes that the representation in 252.203-70XX, Notice of Potential Organizational Conflicts of Interest, is not in the ORCA database. The proposed rule exempts acquisitions for COTS items (as defined at FAR 2.101) from applicability of subpart 203.12 because the revised coverage is not based in statute ( see section IV.C. discussion entitled “203.1200, Scope”) and COTS items are, by definition, sold in substantial quantities in the commercial marketplace and offered to the Government without modification, in the same form in which they are sold in the commercial marketplace. The requirements of the COTS definition render COTS items not susceptible to organizational conflicts of interest.

This is a significant regulatory action and therefore is subject to Office of Management and Budget review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

DoD believes that the proposed changes will not result in a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the requirements of subpart 203.12 do not differ from the burden currently imposed on offerors and contractors by FAR subpart 9.5.

Further, the proposed rule does not include a certification requirement and allows for avoidance, neutralization, or mitigation of organizational conflicts of interest or, under exceptional circumstances, waiver of the requirement for resolution.

An Initial Regulatory Flexibility Analysis has, therefore, not been performed. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2009-D015) in correspondence.

The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies because the proposed rule contains information collection requirements. DoD invites comments on the following aspects of the proposed rule: (a) Whether the collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. The following is a summary of the information collection requirement.

Title: Defense Federal Acquisition Regulation Supplement (DFARS); Organizational Conflicts of Interest in Major Defense Acquisition Programs.

Type of Request: New collection.

Number of Respondents: 8,690.

Responses per Respondent: Approximately 1.

Annual Responses: 9,255.

Average Burden per Response: Approximately 26.75 hours.

Annual Burden Hours: 247,560.

Needs and Uses: DoD needs the information required by 252.203-70XX, 252.203-YY, and 252.203-ZZ to identify and resolve organizational conflicts of interest, as required by section 207 of the Weapons System Acquisition Reform Act of 2009.

Affected Public: Businesses or other for-profit institutions.

Respondent's Obligation: Required to obtain or retain benefits.

Frequency: On occasion.

These estimates are based on—

• 252.203-70XX (e)(1)(i)(A) and (2)—5,650 responses providing information on OCIs and mitigation plans, average of 40 burden hours per plan;

• 252.203-70XX(e)(1)(ii)—2, 930 responses providing information from offerors that do not submit a mitigation plan, average of 2 burden hours per response.

• 252.203-70YY(b)(2)—565 updates to mitigation plan, average of 20 hours per update.

• 252.203-70ZZ—110 disclosures of OCIs after contract award, average of 40 hours per response.

Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503, with a copy to the Defense Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD(AT&L)DPAP(DARS), 3060 Defense Pentagon, Room 3B855, Washington, DC 20301-3060. Comments can be received from 30 to 60 days after the date of this notice, but comments to OMB will be most useful if received by OMB within 30 days after the date of this notice.

To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD(AT&L)DPAP(DARS), 3060 Defense Pentagon, Room 3B855, Washington, DC 20301-3060.

Therefore, DoD proposes to amend 48 CFR parts 202, 203, 212, and 252 as follows:

1. The authority citation for 48 CFR parts 202, 203, 212, and 252 continues to read as follows:

I. Introduction

Federal odometer law, which is largely based on the Motor Vehicle Information and Cost Savings Act (Cost Savings Act)  1 and Truth in Mileage Act of 1986  2 , as amended (TIMA), contains a number of provisions to limit odometer fraud and assure that the purchaser of a motor vehicle knows the true mileage of the vehicle. The Cost Savings Act requires the Secretary of Transportation to promulgate regulations requiring the transferor (seller) of a motor vehicle to provide a written statement of the vehicle's mileage registered on the odometer to the transferee (buyer) in connection with the transfer of ownership. This written statement is generally referred to as the odometer disclosure statement. Further, under TIMA, vehicle titles themselves must have a space for the odometer disclosure statement and States are prohibited from licensing vehicles unless a valid odometer disclosure statement on the title is signed and dated by the transferor. Titles must also be printed by a secure printing process or other secure process. With respect to leased vehicles, TIMA provides that the regulations promulgated by the Secretary require written mileage disclosures be made by lessees to lessors upon the lessor's transfer of the ownership of the leased vehicle. Lessors must also provide written notice to lessees about odometer disclosure requirements and the penalties for not complying with them. Federal law also contains document retention requirements for odometer disclosure statements.

TIMA's motor vehicle mileage disclosure requirements apply in a State unless the State has alternate requirements approved by the Secretary. The Secretary has delegated administration of the odometer program to NHTSA. Therefore, a State may petition NHTSA for approval of such alternate odometer disclosure requirements.

Seeking to implement an electronic vehicle title transfer system, the State of Wisconsin has petitioned for approval of alternate odometer disclosure requirements. The Wisconsin Department of Transportation proposes a paperless odometer disclosure program. Last year, NHTSA reviewed certain requirements for alternative State programs and approved the Commonwealth of Virginia's alternate odometer disclosure program. 74 FR 643, 650 (January 7, 2009). Wisconsin's program is similar to Virginia's program in some respects and is broader in scope than Virginia's in others. Like Virginia's program, transactions involving an out-of-State party are not, in general, within the scope of Wisconsin's program. Wisconsin Pet. p. 2. Unlike Virginia's program, which did not apply to transactions for leased vehicles, Wisconsin's proposal implicates provisions of Federal odometer law related to these vehicles. Wisconsin Pet. p. 4.

As discussed below, NHTSA's initial assessment is that the Wisconsin program satisfies the requirements for approval under Federal odometer law, subject to resolution of certain concerns.

NHTSA recently reviewed the statutory background of Federal odometer law in its consideration and approval of Virginia's petition for alternate odometer disclosure requirements. See 73 FR 35617 (June 24, 2008) and 74 FR 643 (January 7, 2009). The statutory background of the Cost Savings Act and TIMA and the purposes behind TIMA, as they relate to odometer disclosure, other than in the transfer of leased vehicles and vehicles subject to liens where a power of attorney is used in the disclosure, are discussed at length in NHTSA's Final Determination granting Virginia's petition. 74 FR 643, 647-48. A brief summary of the statutory background of Federal odometer law and the purposes of TIMA, including odometer disclosure requirements for leased vehicles, follows.

In 1972, Congress enacted the Cost Savings Act to, among other things, prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers with respect to the sale of motor vehicles having altered or reset odometers. See Public Law 92-513, § 401, 86 Stat. 947, 961-63 (1972). The Cost Savings Act required that, under regulations to be published by the Secretary, the transferor of a motor vehicle provide a written vehicle mileage disclosure to the transferee, prohibited odometer tampering and provided for enforcement. See Public Law 92-513, § 408, 86 Stat. 947 (1972). 3 In general, the purpose for the disclosure was to assist purchasers to know the true mileage of a motor vehicle.

A major shortcoming of the odometer provisions of the Cost Savings Act was their failure to require that the odometer disclosure statement be on the vehicle's title. In a number of States, the disclosures were on separate documents that could be easily altered or discarded and did not travel with the title. See 74 FR 644. Consequently, the disclosure statements did not necessarily deter odometer fraud employing altered documents, discarded titles, and title washing. Id.

Another significant shortcoming involved leased vehicles. The lessor is considered the transferor of the vehicle in leased vehicle sales. Titles to leased vehicles are often transferred without the lessor obtaining possession of the vehicle. Lessors without direct access to their vehicles had to rely solely on their lessees to provide accurate mileage information. However, lessees had no obligation to provide accurate mileage information to lessors upon vehicle transfer. This environment facilitated roll backs of odometers.

Congress enacted TIMA in 1986 to address the Cost Savings Act's shortcomings. It amended the Cost Savings Act to prohibit States from licensing vehicles unless the new owner (transferee) submitted a title from the seller (transferor) containing the seller's signed and dated vehicle mileage statement. See Public Law 99-579, 100 Stat. 3309 (1986); 74 FR 644 (Jan. 7, 2009). TIMA also prohibits the licensing of vehicles, for use in any State, unless the title issued to the transferee is printed using a secure printing process or other secure process, indicates the vehicle mileage at the time of transfer and contains additional space for a subsequent mileage disclosure by the transferee when it is sold again. Id.

TIMA also required the Secretary to issue regulations regarding odometer disclosures for leased vehicles. 4 The regulations promulgated by the Secretary were to require written mileage disclosures by lessees to lessors upon the lessor's transfer of the ownership of the leased vehicle. Lessors must also provide written notice to lessees about the odometer disclosure requirements and the penalties for not complying with them. Federal law also contains document retention requirements for odometer disclosure statements. TIMA required lessors to retain disclosures made by lessees for at least four years following the date that the lessor transfers that vehicle. 5 Id.

TIMA added a provision to the Cost Savings Act allowing States to have alternate odometer disclosure requirements with the approval of the Secretary of Transportation. Section 408(f) of the Cost Savings Act states that the odometer disclosure requirements of subsections (d) and (e)(1) shall apply in a State unless the State has alternate motor vehicle mileage disclosure requirements approved by the Secretary in effect. Section 408(f) further states that the Secretary shall approve alternate motor vehicle mileage disclosure requirements submitted by a State unless the Secretary determines that such requirements are not consistent with the purpose of the disclosure required by subsection (d) or (e), as the case may be.

In 1988, Congress amended section 408(d)(1) of the Cost Savings Act to permit the use of a secure power of attorney in circumstances where the title was held by a lienholder. Public Law 100-561 § 40, 102 Stat. 2805, 2817 (1988). Congress required that the odometer disclosures be made on the power of attorney document at the time of transfer and that the mileage be restated by the person exercising power of attorney on the title. Id. In addition, the power of attorney document was to be issued by means of a secure printing process or other secure process. Id.

In 1990, Congress amended section 408(d)(1)(C) of the Cost Savings Act. 6 The amendment addressed retention of powers of attorneys by States and provided that the rule adopted by the Secretary not require that a vehicle be titled in the State in which the power of attorney was issued. See Public Law 101-641 § 7(a), 104 Stat. 4654, 4657 (1990).

In 1994, in the course of the recodification of various laws pertaining to the Department of Transportation, the Cost Savings Act, as amended, was repealed, reenacted and recodified without substantive change. See Public Law 103-272, 108 Stat. 745, 1048-1056, 1379, 1387 (1994). The odometer statute is now codified at 49 U.S.C. 32701 et seq. In particular, Section 408(a) of the Cost Savings Act was recodified at 49 U.S.C. 32705(a). Sections 408(d) and (e), which were added by TIMA (and later amended), were recodified at 49 U.S.C. 32705(b) and (c). The provisions pertaining to approval of State alternate motor vehicle mileage disclosure requirements were recodified at 49 U.S.C. 32705(d).

As discussed above, the Cost Savings Act, as amended by TIMA in 1986, states that NHTSA “shall approve alternate motor vehicle mileage disclosure requirements submitted by a State unless the [NHTSA] determines that such requirements are not consistent with the purpose of the disclosure required by subsection (d) or (e) as the case may be.” (Subsections 408(d), (e) of the Cost Savings Act were recodified to 49 U.S.C. 32705(b) and (c)). In light of this provision, we now turn to our interpretation of the purposes of these subsections, as germane to Wisconsin's petition.

Our Final Determination granting Virginia's petition for alternate odometer disclosure requirements identified the purposes of TIMA germane to petitions for approval of odometer disclosure requirements that did not include disclosures involving leased vehicles or disclosures by power of attorney. 7 74 FR 643, 647-48 (January 7, 2009). A brief summary of the purposes identified in the Virginia Final Determination follows. In addition, because the Wisconsin proposal encompasses transfers of leased vehicles, we identify the purposes of TIMA relevant to odometer disclosures for those vehicles.

One purpose of TIMA is to assure that the form of the odometer disclosure precludes odometer fraud. 74 FR 647. To prevent odometer fraud facilitated by disclosure statements that were separate from titles, TIMA required mileage disclosures to be on a secure vehicle title instead of a separate document. These titles also had to contain space for the seller's attested mileage disclosure and a new disclosure by the purchaser when the vehicle was sold again. This discouraged mileage alterations on titles and limited opportunities for obtaining new titles with lower mileage than the actual mileage. Id.

A second purpose of TIMA is to prevent odometer fraud by processes and mechanisms making odometer mileage disclosures on the title a condition of any application for a title, and a requirement for any title issued by a State. 74 FR 647. This provision was intended to eliminate or significantly reduce abuses associated with lack of control of the titling process. Id.

Third, TIMA sought to prevent alterations of disclosures on titles and to preclude counterfeit titles through secure processes. 74 FR 648. In furtherance of these purposes, paper titles (incorporating the disclosure statement) must be produced using a secure printing process or protected by “other secure process.”  8 Id.

A fourth purpose is to create a record of vehicle mileage and a paper trail. 74 FR 648. The underlying purposes of this record and paper trail were to better inform consumers and provide mechanisms for tracing odometer tampering and prosecuting violators. TIMA's requirement that new applications for titles include signed mileage disclosure statements on the titles from the prior owners creates a permanent record that is easily checked by subsequent owners or law enforcement officials. This record provides critical snapshots of vehicle mileage at every transfer, which are the fundamental links of this paper trail.

Finally, the general purpose of TIMA is to protect consumers by assuring that they receive valid representations of the vehicle's actual mileage at the time of transfer based on odometer disclosures. 74 FR 648.

TIMA recognized that additional mechanisms were needed to assure accurate odometer disclosures for leased vehicles. In vehicle leases, the lessor typically retains ownership of the vehicle, but does not possess it. The lessor, as a transferor, must comply with Federal odometer disclosure requirements when it subsequently transfers title to a leased vehicle. However, prior to TIMA, lessees were not obligated by Federal odometer law to provide lessors with accurate odometer disclosure statements. TIMA addressed this issue, as discussed above. A number of purposes can be derived from TIMA's provisions, discussed above, relating to the transfer of ownership of leased vehicles.

One purpose of TIMA's leased vehicle provisions is to assure that lessors have the vehicle's proper odometer mileage at the time of transfer.

A second purpose of TIMA's leased vehicle provisions is to assure that lessees provide lessors with an odometer disclosure statement.

A related purpose is to assure that lessees are formally notified of their odometer disclosure obligations and the penalties for failing to comply by not providing complete and truthful information.

A fourth purpose is to set the ground rules for the lessors, allowing them to indicate on the title the mileage provided by the lessee, unless the lessor has reason to believe that the disclosure by the lessee does not reflect the actual mileage of the vehicle.

A fifth purpose of TIMA's leased vehicle provisions is to create records and a paper trail. This is an expansion of the fourth general purpose of TIMA stated above. The paper trail includes the written, dated and signed odometer disclosure statement by the lessee. Unlike odometer disclosure statements on vehicle titles that are filed with the State, a lessee's odometer disclosure statement is separate from the title and not filed with the State. Instead, the disclosure statement is sent to the lessor, who must retain a copy for at least four years. The retention of lessee odometer disclosure statements by lessors permits law enforcement officials to trace fraudulent disclosure statements back to lessees, if necessary.

Last, the overall purpose of TIMA's leased vehicle provisions, consistent with the general purposes of TIMA, is to ensure that there are valid representations of the vehicle's actual mileage at the time of transfer. See H.R. Rep. No. 99-833, at 33 (1986).

Wisconsin, which is in the process of implementing an electronic title transfer system, petitions for approval of alternate odometer disclosure requirements. Wisconsin requests alternate disclosure requirements for transfers of motor vehicles in transactions between private parties (including motor vehicle dealers), transactions involving leased vehicles, transactions between parties involving a lienholder, 9 and transactions involving private parties without any lienholder.

Recent Wisconsin legislation established that the title, title application, and other specified information maintained by the DMV in its database are the original and controlling title record for a vehicle. See Wis. Stat. Ann. § 342.01(2)(ac) and § 342.09(4) (2009). Wisconsin proposes to create an electronic odometer statement (e-Odometer) as the official odometer statement to reside in the Wisconsin Department of Transportation (WisDOT), Department of Motor Vehicles (DMV) database. Under the proposal, a distinct e-Odometer system would be created for accepting and maintaining e-Odometer statements as stand-alone electronic records, separate from an electronic title. E-Odometer statements would be linked to, and become part of the title record in the DMV database. The DMV's titling system would automatically link the e-Odometer records to a vehicle's title whenever an electronic title transaction occurs and a title transfer could not be completed unless a proper odometer disclosure is made in the e-Odometer entry. According to Wisconsin's petition, if a paper title is needed, DMV would print it on secure paper with the odometer disclosure statement in the proper location and format.

Wisconsin has implemented a titling system that permits individuals, organizations and businesses (collectively, DMV Customers) to process vehicle title transactions electronically through its automated processing partnership system (APPS) program. See Wis. Admin. Code § Trans 1565.01. Under APPS, a vendor  10 approved by the DMV  11 creates a computer system to link or interface DMV customers with the DMV database. The link permits the DMV customer to access to the DMV database and conduct authorized title transactions.

In order to become eligible for direct access to the DMV's database under the vendor system, a DMV customer must enter into an agreement with an approved vendor, obtain DMV approval to process title transactions, and enter into a contract with the DMV. To maintain system security and integrity, employees of DMV customers using the interface would have to submit a signed affidavit to the DMV before accessing the system. Once the DMV customer complies with these requirements, the DMV customer would be able to perform authorized title transactions directly within DMV's system.

Currently, Wisconsin requires motor vehicle dealers to electronically process title transactions for vehicles that they sell. See Wis. Stat. Ann. § 342.16(1)a and (am) (2009); Wis. Admin. Code § Trans 141.01. Motor vehicle dealers can perform electronic titling transactions through APPS or through an Internet-based interface with DMV, known as e-MV11. In order to process title transactions using the e-MV11, a DMV customer must apply to the DMV by submitting an application setting forth the name, address and contact of the entity and providing the names and access authority of employees performing title transactions. After setting up the required security protocols, the DMV customer can enter the appropriate title transaction. 12 Also, under Wisconsin's electronic titling program, motor vehicle dealers are required to maintain and keep their title transactions records, including odometer disclosure statements, for five years. See Wis. Admin. Code § Trans 141.08(2).

According to Wisconsin's petition, the electronic titling program will be expanded to include other persons, businesses and organizations. These businesses and organizations, such as lienholders or auction companies, would conduct electronic title transactions through APPS. Individuals conducting private sales of unencumbered vehicles would eventually have the ability to perform title transfer and odometer disclosure through an Internet-based application called e-MVPublic.

Wisconsin asserts that e-Odometer entries would provide a virtual replacement of existing secure paper odometer disclosure statements for vehicle transactions. Under Wisconsin's proposal, the e-Odometer system would be a unique electronic application within Wisconsin's electronic title transfer system. Although the e-Odometer entry would be a stand-alone secure electronic record, it would be safely and securely electronically linked to the electronic title record of the vehicle by the vehicle identification number (VIN) and become part of the vehicle title. Title transfer could not occur unless the transferor and transferee, or other authorized persons, such as dealer employees, perform the required disclosure and acceptance through the e-Odometer system. Once the odometer disclosure and acceptance is completed, the statement is stored in the e-Odometer system and linked to the electronic title record by the VIN.

The petition states that the following information that will be stored in the secure e-Odometer record:

1. VIN;

2. Description of the vehicle by make, model, model year and body type;

3. Odometer reading and date of the reading;

4. The Brand (actual, not actual or exceeds limits of odometer);

5. Name, address of person disclosing odometer reading (must match the transferor);

6. Name, address of person accepting odometer reading (must match the transferee); and

7. Statement reference to Federal law requirement and potential penalties.

Some of the e-Odometer information, and other vehicle information, will be available to DMV personnel through a DMV vehicle inquiry function, while limited information will be available to the public through a public inquiry function. The information available to DMV personnel includes:

1. Vehicle description;

2. Title owner information;

3. Brands, if any;

4. Most current odometer reading, status and date recorded;

5. Odometer reading, status and record date history;

6. Lien information; and

7. Owner in possession of the vehicle.

The publicly available information includes:

1. Vehicle description;

2. Most current odometer reading, status and date recorded;

3. Brands, if any; and

4. Lien information.

Wisconsin's petition states that amendments or creation of e-Odometer records would only be possible when titles are transferred in the course of authorized transactions by authorized persons.

Wisconsin proposes to implement its e-Odometer program in three phases. Because motor vehicle dealers are already required to complete title transactions electronically, Wisconsin intends to begin the e-Odometer program with these dealers. See Wis. Stat. Ann. § 342.16(1)a and (am) (2009); Wis. Admin. Code § Trans 141.01. The second phase would implement e-Odometer in title transfers involving lienholders, motor vehicle auctions, vehicle repossessions, and leases. The proposal's final phase would implement e-Odometer in transfers of unencumbered motor vehicles between private individuals. Phase two and three are still under development and Wisconsin has not provided an estimated implementation schedule. According to the petition, as e-Odometer is phased in, Wisconsin will still issue odometer disclosures on secure printed titles.

Wisconsin's petition states e-Odometer will apply first to motor vehicle transfers through motor vehicle dealers. During this phase, eligible title transactions include reassignments among dealers, consignments and retail sales. In order to complete a transaction, there must be an odometer disclosure and acceptance of the odometer statement. The odometer disclosure and acceptance will be permitted between the following persons: (1) Authorized dealer personnel and an individual buyer; (2) an individual seller trading in a vehicle and authorized dealer personnel; (3) authorized dealer personnel in the case of dealer reassignments; and (4) an individual vehicle owner and an authorized person on behalf of a consignee in the case of vehicle consignment. According to Wisconsin, the identities of all persons involved will be verified and authenticated through DMV's processes.

Under Wisconsin's proposal, dealer title transfer transactions would be completed through an APPS's vendor interface application or the e-MV11 Internet-based application. During these title transfer transactions, e-Odometer forms will be imported into the transaction and completed by the authorized persons.

Wisconsin's petition states that the second phase would incorporate e-Odometer procedures into title transfers in a number of circumstances including between private parties when there is a lien on the vehicle. These title transactions would be processed by the financial institution holding the lien. During this phase, e-Odometer would be available to the financial institution through the APPS application or an application WisDot develops for these lenders. Because lienholders do not possess titles under Wisconsin law, a satisfied lienholder would access e-Odometer to electronically release the lien to allow production of a clear title. To facilitate this process, e-Odometer forms would be available to buyers and sellers through an Internet application allowing completion of the required odometer disclosures and acceptances.

During this second phase, Wisconsin also proposes to incorporate use of the e-Odometer system into title transfers involving motor vehicle auctions, involuntary vehicle transfers ( i.e. involuntary liens and repossessions), corrections to odometer information on titles, leased vehicles and other transactions involving secure odometer statements.

The last phase of Wisconsin's program would incorporate e-Odometer entries into private sales of unencumbered vehicles. The title transfer would be conducted through an on-line application called e-MVPublic. 13 For private transfers of motor vehicles, odometer disclosure and acceptance would be accomplished by the seller and buyer through e-MVPublic once their identities are verified by DMV processes.

Wisconsin's petition describes two verification processes whose operation differs depending on whether the user is a DMV partner or regular customer (such as a dealer or financial institution) or an intermittent user. For a DMV partner or regular customer, the first step is being approved by DMV to access its database. As part of the approval process, the entity must provide the legal business name and address of the location of the business. After approval, identity verification procedures would require these users to enter into an agreement with the DMV that includes security procedures—including establishing an account and secure logon ID. The users are identified and authenticated through a unique “user ID” and password that are traced to a particular person on the account.

The verification process would be managed by vendors. The Wisconsin APPS program requires approved vendors to design precise electronic security and audit trail procedures into its interface, which DMV would then verify. This interface requires three administrative steps to identify, authenticate and authorize users of the DMV's database. First, vendors must create an audit journal to identify the individual responsible for each transaction. Vendors assign each user a “user ID” that can be traced to the individual user. Next, to authenticate the user, a password known only to the user that is associated with the “user ID” is entered before a transaction is allowed. If an individual user is not authorized by the vendor for the type of transaction requested, the system will immediately terminate the transaction. Last, vendors must authorize the user to access the appropriate information. In addition to the identification protocols, vendors must create and maintain access logs that can be used for auditing and recording keeping, which include, among other things, a history of each customer transaction.

Under Wisconsin's proposal, DMV partners and regular customers must submit the identity of each employee who will conduct title transactions and specify each employee's authority to perform transactions in DMV's database. Each employee must submit a signed affidavit acknowledging security procedures and safeguards prior to obtaining authorization from the DMV to conduct title transfer transactions. DMV must confirm each user's authorization before the user can process title transactions.

For individuals who are not DMV partners or regular customers, Wisconsin would require individuals to establish an electronic signature that can uniquely identify the person. Identity verification begins with the customer entering a minimum of three personal identifiers for the correct customer record in the DMV database. Personal identifiers include name, address, date of birth, product number, Driver License/ID number, a Federal Employer Identification Number, or partial Social Security Number (possibly the last four or five digits). 14 After the user inputs the personal identifiers into the system, the system will check DMV customer records and verify that the user is the correct individual or business and will authorize the customer to update the odometer statement. Once the user is verified, the user can begin the title transaction.

Wisconsin's petition states that two parties must engage in an authorized e-Odometer transaction to effectuate the odometer disclosure. In order to conduct the e-Odometer disclosure, each party will access the DMV database by providing information to satisfy the identity verification requirements of the system and the VIN of the vehicle. Under Wisconsin's proposal, a transferor must disclose the odometer reading and brand (actual/not actual/exceeding odometer limits) and the transferee must accept the odometer reading to allow the transaction to go forward. 15 The e-Odometer transaction will remain in a pending status between the transferor and transferee until each party completes the required actions, e.g., disclosure by the seller and acceptance by the buyer. Once both actions have been accomplished, the e-Odometer record will be secured within DMV's database and become part of the electronic title through the VIN.

To clarify the e-Odometer procedure, Wisconsin provides an exemplar title transaction involving a dealer trade-in. In a vehicle trade-in transaction, the customer (transferor) must bring the paper title to the dealer (transferee) at the time of the transferor. After entering all the required data in the Wisconsin electronic title system and initiating the e-Odometer process, the dealer would then destroy the paper title. 16 Under the e-Odometer process, the customer discloses the odometer reading (and brand) and the dealer accepts the odometer reading. The vehicle's odometer reading is then stored in the DMV database and linked virtually to the vehicle's title through the VIN. Upon later sale of the trade-in vehicle, the dealer (as the transferor) must disclose the odometer reading (and brand) and the vehicle buyer (as the transferee) must accept the odometer reading. The dealer and buyer will access e-Odometer at the time of the sale to complete the disclosure and acceptance of the odometer statement, which upon acceptance by the buyer secures the odometer statement in the DMV's database. After the sale of the vehicle is completed, the dealer completes title processing in APPS or e-MV11 by titling the vehicle in the consumer's name, verifying that secure odometer disclosure has been completed. After titling is complete, the updated e-Odometer entry becomes part of the title record. For in-State transactions, a paper title is issued only upon request.

Wisconsin contends that its e-Odometer program meets the purposes of TIMA, as described by NHTSA in its Final Determination on the Commonwealth of Virginia's petition for alternate odometer disclosure requirements. See 74 FR 643, 647-48 (January 7, 2009).

Wisconsin's petition states that e-Odometer is part of the vehicle's title. Under e-Odometer, the VIN links the odometer statement to the title record. The system automatically imports e-Odometer into the title transfer transaction process conducted by the transferor and transferee. A title transaction cannot occur, unless the odometer disclosure statement is made and accepted. The e-Odometer information is then secured, stored, and becomes visible through the vehicle's electronic title record.

According to the petition, other system requirements provide a significant level of security for the e-Odometer system. First, title transfer cannot occur unless the authorized persons update e-Odometer entries. Second, only those persons authorized to make title transfer transactions ( e.g. authorized dealer personnel or authenticated private owners) are able to make e-Odometer statements. Third, odometer disclosure under the e-Odometer system is only permitted when a title is transferred. 17 If a title is required to be printed on a secure title paper, the DMV system will automatically include the odometer disclosure information on the printed title. If a title on secure title paper is used in a vehicle transfer, the odometer information shown on the secure paper title will be entered into the e-Odometer electronic record during the title transfer transaction process and the paper title will be destroyed.

Wisconsin's petition also states that odometer disclosure is a required data input for application for a title and a required output on the title. According to the petition, the odometer disclosure and acceptance is a required input to an electronic title transaction, whether performed through APPS or e-MV11. Although APPS permits odometer disclosure and acceptance at different times, e-Odometer secures the disclosure and acceptance and stores it electronically until the odometer disclosure is imported during title processing.

Wisconsin's petition asserts that e-Odometer provides an equivalent level of security against altering, tampering, and counterfeiting as the odometer statement on a secure paper title. According to Wisconsin, the e-Odometer statement is secured in the DMV database, as soon as the transferor electronically discloses and the transferee accepts the odometer reading. After the transferee accepts the odometer disclosure, e-Odometer stores that mileage disclosure, the date, the names and addresses of the transferor and transferee, and will not allow any changes to that entry.

Finally, Wisconsin's petition contends that the authentication and verification of the transferor's and transferee's electronic signatures are readily detectable and reliably traced to the particular individual. Wisconsin states that the DMV has established extensive security procedures for vendors who process vehicle transactions on behalf of DMV and regularly interact with DMV, and for individuals and intermittent business customers who wish to make entries in DMV records. Wisconsin's security procedures are governed under Wisconsin statutes, administrative rules, contracts, DMV policy and procedure, and electronic security protocols. DMV Partners and regular business customers will access the e-Odometer system through secure applications that are already in use for vehicle title transactions. Individuals and intermittent business customers will access the e-Odometer system through a secure Internet application. Both applications require information, such as electronic signatures, that can authenticate and verify the users' identity.

Under TIMA, NHTSA “shall approve alternate motor vehicle mileage disclosure requirements submitted by a State unless the [NHTSA] determines that such requirements are not consistent with the purpose of the disclosure required by subsection (d) or (e) as the case may be.” The purposes are discussed above, as is the Wisconsin alternative. We now provide our initial assessment whether Wisconsin's proposal satisfies TIMA's purposes as relevant to its petition. 18

One purpose is to assure that the form of the odometer disclosure precludes odometer fraud. In this regard, NHTSA has initially determined that Wisconsin's proposed alternate disclosure requirements satisfy this purpose. Under Wisconsin's proposal, a required part of the data to be entered in the transfer of title is the vehicle's odometer reading. The reading is disclosed by the transferor and accepted by the transferee. Thereafter the odometer disclosure statement will reside as an electronic record within the DMV database that will be linked to the vehicle's title, also an electronic record, by the VIN. Thus, the odometer disclosure is a required element pertaining to and part of the title record in the DMV database. If a hard copy of the title is needed, Wisconsin can generate a title with the odometer disclosure statement on the title using a secure printing process. Wisconsin's proposed system would, therefore, have the odometer disclosure as part of the vehicle title as required by TIMA. As to TIMA's requirement that the title contain a space for the transferor to disclose the vehicle's mileage, NHTSA believes the proposed Wisconsin electronic title and odometer system would provide an electronic equivalent to these requirements for use in a subsequent sale of the vehicle. The agency expects that hard copies of electronic titles will continue to provide a separate space for owners to execute a proper odometer disclosure in keeping with TIMA and current practice. 19

Another purpose of TIMA is to prevent odometer fraud by processes and mechanisms making the disclosure of an odometer mileage on the title a condition for the application for a title and a requirement for the title issued by the State. With one exception, NHTSA has initially determined that Wisconsin's proposed process satisfies this purpose. Wisconsin's proposed on-line title transfer process requires disclosure and acceptance of odometer information before the transaction can be completed. If the transaction is successful, DMV's system will create or amend an electronic title and store the linked electronic odometer statement. A new title will not be issued without entry of the odometer disclosure and acceptance of it.

The exception concerns Wisconsin's proposal to permit the alteration of the brand on an electronic odometer statement when the seller of the vehicle is unavailable at the time of the transfer of ownership. According to Wisconsin's petition, if the seller is not available, the DMV database permits the transferee to state the odometer reading with a brand of “not actual.” If the transferor becomes available to make the disclosure and does so, DMV would change the recorded status to “actual.” As noted above, such a subsequent change to the title does not conform to Federal odometer law, which requires an odometer disclosure statement, including the brand, to be made at the time of transfer. 49 U.S.C. 32705(a)(1); 49 CFR 580.5(a). The requirement to state the actual mileage and brand at the time of transfer is not based on section 408(d) and (e) of the Cost Savings Act as amended, recodified at 49 U.S.C. 32705(b) and (c). 20 Accordingly, we have decided to grant Wisconsin's petition on the condition that Wisconsin conforms its program to the requirements of Federal odometer law or fully explains how exceptions, such as the one for the unavailable seller, complies with the law and its purposes.

Another purpose of TIMA is to prevent alterations of disclosures on titles and to preclude counterfeit titles through secure processes. The agency has initially determined that Wisconsin's alternate disclosure requirements appear to be as secure as current paper titles. As we understand Wisconsin's proposal, the odometer statement is disclosed by the transferor and accepted by the transferee, and thereafter the DMV database system stores an electronic version of the odometer statement. Assuming that the e-Odometer database is maintained with appropriate levels of security, electronic recording of odometer readings and disclosures would be maintained in a way in which alteration is unlikely. The odometer reading, which would be linked to the electronic title record by the VIN, cannot be altered except when it is updated during the title transfer process by authorized users. On subsequent title transfers, the transferor and transferee would have to complete the odometer disclosure and acceptance for the transaction to be completed.

When fully implemented, all subsequent title transfers will be performed through the APPS or e-MV11, or other secure on-line process. Each time an on-line title transfer occurs, the DMV database system stores the electronic version of the odometer statement. The DMV will issue a paper title only when necessary, e.g., title transfer transactions that involve out-of-State parties. Since the title and odometer statement remain in electronic form under State care and custody, the likelihood of an individual altering, tampering or counterfeiting the title or odometer statement is significantly decreased. These electronic records would be maintained in a secure environment and any unauthorized access would be detected by the system. Moreover, under Wisconsin law, the electronic title record is the official and controlling title. If a conflict exists between the electronic title and a paper title, the paper title is void.

Another purpose of TIMA is to create a record of the mileage on vehicles and a paper trail. The underlying purposes of this record trail are to enable consumers to be better informed and provide a mechanism through which odometer tampering can be traced and violators prosecuted. In NHTSA's preliminary view, the proposed Wisconsin's electronic title transfer system will create a scheme of records, equivalent to the current “paper trail,” that assists law enforcement in identifying and prosecuting odometer fraud. Under the Wisconsin proposal, creation of a paper trail starts with the requirement for certain DMV customers to process title transactions through the APPS program. Under APPS, a DMV customer must sign a written agreement with DMV that includes security procedures, an account and a secure logon ID. DMV customers also must provide DMV with the names of the individuals authorized to conduct transactions in APPS. These individuals are issued a secure logon ID and password that can be traced by DMV to their transactions. In addition, APPS vendors must create security protocols that include an audit journal that can identify each person responsible for each title transaction. Vendors must also provide DMV with a daily report detailing all security violations. Furthermore, Wisconsin requires motor vehicle dealers to retain copies of electronic titles for motor vehicles owned and offered for sale and odometer statements received and given for a period of 5 years. 21

For individuals not using APPS, the identity verification procedures require the establishment of electronic signatures of the parties. Due to the system's procedures for validating and authenticating the electronic signature of each individual through DMV's database, the electronic signatures of the transferor and transferee are reliable, readily detectable and can easily be linked to particular individuals. 22 Because the electronic signature consists of data elements such as the name, address, date of birth, product number, driver license or identification card number, Federal Employer Identification Number, or the last four or five digits of the individual's Social Security number, Wisconsin's e-Odometer system can validate and authenticate individual electronic signatures. This authentication process also allows Wisconsin to trace the individuals involved in the transaction. This capacity maintains the purposes of creating a paper trail since the Wisconsin system will have a history of each vehicle's title transfer and odometer disclosure. These electronic records will create the electronic equivalent to a paper based system that will be readily available to law enforcement.

Whether Wisconsin's program conforms to TIMA's overall purpose is discussed in subpart C below.

One purpose of TIMA's leased vehicle provisions is to assure that the lessor has the vehicle's odometer mileage at the time the lessor transfers ownership. The agency has initially determined that the Wisconsin alternate disclosure requirements satisfy this purpose. As we understand Wisconsin's proposal, the State proposes to require vehicle lessees to submit the electronic odometer statement to their lessors when relinquishing the leased vehicle. The lessee's odometer statement will be stored in the DMV database and linked to the leased vehicle by the VIN. Once stored in the DMV database, the odometer statement is secured and recorded and made available to the lessor. On subsequent transfer of the vehicle by the lessor, the odometer disclosure statement from the lessee would be available in the e-Odometer system for acceptance by the subsequent transferee. The subsequent transferee would have to accept the odometer disclosure reading in the e-Odometer entry before the transaction could be completed and for title to transfer.

A second purpose of TIMA's leased vehicle provisions is to assure that the lessee provides the lessor with an odometer disclosure statement regarding the mileage of the vehicle. As discussed above, the lessee would provide it via the DMV data base.

A related purpose is to assure that lessees are formally notified of their odometer disclosure obligations to the lessor and the penalties for failing to comply by not providing complete and truthful information. As described in the Petition, Wisconsin's alternate disclosure requirements do not address this purpose. However, we note that Wisconsin's leased vehicle odometer disclosure regulations parallel 49 U.S.C. 32705(c)(2) and 49 CFR 580.7 by requiring that lessors notify lessees of their odometer disclosure obligations. See Wis. Admin. Code Trans 154.7 (2009). Lessors may meet this notification requirement without using the electronic system proposed by Wisconsin. The lessors' obligations should be clearly stated.

A fourth purpose is to set the ground rules for the lessors, allowing them to indicate on the title the mileage provided by the lessee, unless the lessor has reason to believe that the disclosure by the lessee does not reflect the actual mileage of the vehicle. We have initially determined that Wisconsin's proposal meets this purpose. As noted previously, a lessee will make the required odometer disclosure to the lessor in e-Odometer upon relinquishing the leased vehicle. The lessor may use this statement in a subsequent title transfer, unless the lessor has reason to believe that the lessee's statement does not reflect the vehicle's actual mileage, in which case, the lessor must brand the title accordingly. We believe that Wisconsin must provide for this branding information—that the lessor has reason to believe that the disclosure by the lessee does not reflect the actual mileage of the vehicle—in its proposed system.

A fifth purpose of TIMA's leased vehicle provisions is to create records and a paper trail. The paper trail includes the written, dated and signed odometer disclosure statement by the lessee. The agency has initially determined that the Wisconsin alternate disclosure requirements satisfy this purpose. Under Wisconsin's proposal, as we understand it, both the lessee and the lessor are required to make the odometer disclosure electronically in e-Odometer. 23 The lessee will make the odometer disclosure in e-Odometer, which will be stored in the DMV database and linked to the leased vehicle by the VIN. The lessor will have to accept it to complete the transaction. On subsequent transfer of the vehicle by the lessor, the lessor can use the lessee's odometer disclosure statement, which is available in the e-Odometer system, to certify the actual mileage of the leased vehicle. The subsequent transferee would have to accept the odometer disclosure reading in the e-Odometer entry before the transaction could be completed and for title to transfer. It would then be stored. Wisconsin's electronic odometer disclosure system would create a scheme of records equivalent to the current “paper trail” now assisting consumers in reviewing mileages on used vehicles and law enforcement in identifying and prosecuting odometer fraud. A copy of the odometer disclosure statement could be retained by the lessor. 24 With the use of the APPS system to identify parties to the odometer disclosure and the use of electronic signatures to identify individuals not in the APPS system, the Wisconsin DMV will have the capacity to trace a particular lessee who makes a fraudulent odometer disclosure during the lessor/lessee transaction.

The overall purpose of TIMA's leased vehicle provisions is to ensure that vehicles subject to long-term leases have adequate odometer disclosure statements executed on titles at the time of transfer. The agency has initially determined that Wisconsin's proposal meets TIMA's overall requirement. Upon the termination of the lease, a lessee will be required to make an odometer disclosure statement in e-Odometer. This electronic disclosure is equivalent to a paper odometer disclosure statement and provides the same assurances. The lessee's odometer statement will be secured and stored in Wisconsin's DMV database. Because the odometer statement is electronically stored in a secure environment, the statement, unlike a paper version, cannot be altered, changed or lost, further enhancing the validity of the statement. In addition, with the identity verification of the e-Odometer system, the lessee can be traced to the odometer statement for a particular vehicle. Last, upon transfer of the vehicle by the lessor, the transferee has the opportunity to review the odometer statement in the DMV's database and accept it (or reject it) prior to the transfer of the vehicle's title.

TIMA's overall purpose is to protect consumers by assuring that they receive valid odometer disclosures representing a vehicle's actual mileage at the time of transfer. Here, Wisconsin's proposed alternate disclosure requirements include characteristics that would assure that representations of a vehicle's actual mileage would be as valid as those found in current paper title transfers. Identity authentication, maintenance in a secure electronic environment and transferee verification of the mileage data reported by the transferor all help to ensure valid disclosures. In addition, by providing rapid access to records of past transfers and by maintaining audit logs of each and every title transfer transaction, the scheme proposed by Wisconsin could potentially provide a superior deterrent to odometer fraud. Furthermore, Wisconsin's proposal offers the public the opportunity to view the most recent odometer reading and date of that reading through an Internet application. A prospective purchaser can access the public e-Odometer information to assess a vehicle's true value by comparing the vehicle's current odometer reading to the electronic record stored with the DMV.

For the foregoing reasons, NHTSA preliminarily grants Wisconsin's petition regarding proposed alternate disclosure requirements with respect to vehicle transfers, subject to resolution of certain issues. As noted above, an issue is how the proposed Wisconsin system would manage disclosure when the seller is unavailable. Second, as explained above, we have tentatively concluded that Wisconsin will need to amend its program to permit lessors to retain each odometer disclosure statement they give and receive. The Agency also asks that Wisconsin clarify the system's ability to allow lessors to place a different brand on the disclosure statement in those instances where the lessor believes, or has reason to believe, that the statement provided by the lessee is inaccurate. During the comment period, we expect Wisconsin to submit additional information demonstrating how its program satisfies these concerns or that its program has been amended to satisfy these concerns.

This is not a final agency action. NHTSA invites public comments within the scope of this notice. Should NHTSA decide to issue a final grant of Wisconsin's petition, it would likely reserve the right to rescind that grant in the event that future information indicates that, in operation, Wisconsin's alternate disclosure requirements do not satisfy applicable standards.

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

Your comments must not be more than 15 pages long ( see 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 under ADDRESSES .

You may also submit your comments to the docket electronically by logging onto the Dockets Management System Web site 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 also will consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider it in developing the final rule, 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 under ADDRESSES . The hours of the Docket are indicated above in the same location.

You also may see the comments on the Internet. To read the comments on the Internet, go to http://www.regulations.gov, and follow the instructions for accessing the Docket.

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.

Our announcement of a 12-month finding on a petition to list the mountain whitefish ( Prosopium williamsoni ) in the Big Lost River, Idaho, under the Act (16 U.S.C. 1531 et seq. ) published in the Federal Register on April 6, 2010 (75 FR 17352), with minor errors we now correct in this document.

In the published notice, Figure 1 is mentioned two-thirds the way down the first column of page 17353, but the figure itself is omitted. Under the header Species Distribution and Habitat, the figure should be inserted at the end of the first paragraph.

In the published notice, Figure 2 is mentioned two-thirds the way down the second column of page 17353, but the figure itself is omitted. Under the header Distribution and Habitat Within the Big Lost River Basin, the figure should be inserted at the end of the paragraph.

Both figures are provided below.