The Federal Election Campaign Act, as amended, contains restrictions and prohibitions on contributions made for the purpose of influencing Federal elections. Partnerships, like individuals, may make contributions of up to $2,500 per candidate per election to Federal office; $30,800 aggregate per calendar year to national party committees; and $5,000 aggregate per calendar year to other political committees. 1

The Act prohibits corporations from making contributions in connection with a Federal election. 2 U.S.C. 441b(a). Instead, corporations may use their general treasury monies to establish separate segregated funds (“SSFs”) and solicit contributions from their restricted classes to their SSFs. 2 2 U.S.C. 441b(b)(2)(C); 11 CFR 114.5(b), (g). The SSF may then make contributions subject to the Act's contribution limitations, as well as expenditures. An SSF has the same contribution limitations as individuals and partnerships, except that an SSF that is a multicandidate political committee may make contributions of up to $5,000 per candidate per election to Federal office; $15,000 aggregate per calendar year to national party committees; and $5,000 aggregate per calendar year to other political committees. 3

Partnerships are included in the Act's definition of “person” but are not otherwise specifically addressed. The Commission's regulation addressing partnerships is currently found at 11 CFR 110.1(e). This regulation requires that partnership contributions be attributed to the partnership and to each partner, 4 either: (1) In direct proportion to his or her share of the partnership profits; or (2) by agreement of the partners, as long as only the profits of the partners to whom the contribution is attributed are reduced and these partners' profits are reduced (or losses increased) in proportion to the contribution attributed to each of them. 11 CFR 110.1(e)(1), (2)(i)-(ii). Unlike corporations, this regulation does not contemplate partnerships forming SSFs.

The Act and Commission regulations do not distinguish between types of partnerships. Under the IRS “check the box” rules, the IRS provides equal treatment for limited liability companies (“LLCs”) and LLPs. See 26 CFR 301.7701-3(c)(1)(i). An LLP is a form of general partnership that provides partners  5 with protection against personal liability for certain partnership obligations, just as shareholders of a corporation may generally be protected against personal liability for corporate obligations. Both forms of business entity may opt for treatment as an association, and consequently for corporate tax treatment, without regard to State law status. Id. A partnership that opts for treatment as an association “contributes all of its assets and liabilities to the association in exchange for stock in the association, and immediately thereafter, the partnership liquidates by distributing the stock of the association to its partners.” 26 CFR 301.7701-3(g)(1)(i).

The Commission proposes to revise its rules on partnerships so that LLPs opting for association treatment (“Corporate LLPs”) would be treated as corporations in 11 CFR part 114. Corporate LLPs would no longer themselves be able to make contributions or to attribute them to their partners. Instead, Corporate LLPs could establish SSFs that could solicit contributions from their restricted classes, and would be able to use those funds to make contributions to candidates and political committees. In contrast, LLPs that do not “check the box” pursuant to the Internal Revenue Service's provisions would be able to make contributions and those contributions would continue to be attributed to the partnership and its partners. 6

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-1167; Directorate Identifier 2012-NE-36-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 with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

The European Aviation Safety Agency (EASA), which is the aviation authority for the Member States of the European Community, has issued EASA AD 2012-0204, dated October 1, 2012 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

RRD has issued Alert Service Bulletin TAY-72-A1772 dated August 9, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of Germany, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. 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 products of the same type design. This proposed AD requires removing the affected LPC rotor disc assemblies at the new lower recalculated DSCL.

We estimate that this proposed AD will affect 4 engines installed on airplanes of U.S. registry. We also estimate that it would require 4 hours to perform the actions required by this AD. The average labor rate is $85 per hour. Prorated life for the disc assembly is approximately $650 per disc. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $3,960.

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

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

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-1288; Directorate Identifier 2012-NE-37-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We received reports of three failure events of OBV ring lock fuel fittings on GE CF34-8C turbofan engines. Two of those events led to an engine fire. Investigation revealed that the ring lock fittings failed due to fatigue caused by improper broaching of the OBV housing during manufacture, and, improper installation of the ring lock fittings during OBV assembly. GE CF34-8E turbofan engines also use the affected OBVs and would be affected by this proposed AD. This condition, if not corrected, could result in failure of OBV ring lock fuel fittings, engine fuel leakage, uncontrolled fire, and damage to the airplane.

We reviewed GE Service Bulletin (SB) No. CF34-8C-AL S/B 75-0017, dated September 14 2012. We also reviewed GE SB No. CF34-8E-AL S/B 75-0012, dated September 14, 2012. These bulletins describe procedures for removing from service OBVs having an affected P/N.

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

This proposed AD would require for all GE CF34-8C and CF34-8E turbofan engines with an OBV P/N 4121T67P02, P/N 4121T67P03, P/N 4121T67P04, parts manufacturer approval (PMA) P/N 392155-2, PMA P/N 392155-3, or PMA P/N 392155-4 installed, removal of the OBV from service.

We estimate that this proposed AD would affect 300 engines installed on airplanes of U.S. registry. We also estimate that it would take about two hours per engine to perform the actions required by this proposed AD, and that the average labor rate is $85 per hour. Required parts would cost about $25,000 per engine. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $7,551,000.

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

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

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

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

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

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

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

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

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-1226; Directorate Identifier 2012-NM-122-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.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2012-17, dated May 24, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Bombardier has issued Service Bulletin 84-52-66, Revision A, dated October 24, 2011; and Temporary Revision ALI-122, dated November 4, 2011, to Section 1 Certification Maintenance Requirements, of the Airworthiness Limitations Items (ALI) Part 2, Bombardier Q400 Dash 8 Maintenance Requirements Manual, PSM 1-84-7. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

This proposed AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, an operator might not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval of an alternative method of compliance (AMOC) in accordance with the provisions of paragraph (j)(1) of this proposed AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane.

The MCAI is applicable to airplanes with serial numbers 4001 through 4364. The service information omits serial number 4002. We have omitted serial number 4002 from the applicability of this proposed AD, because it was a flight test airplane that has been decommissioned.

Based on the service information, we estimate that this proposed AD would affect about 78 products of U.S. registry. We also estimate that it would take about 8 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $10,596 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $879,528, or $11,276 per product.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

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

Throughout this document, “we,” “us,” and “our” means EPA.

The Clean Air Act at section 110(a)(2)(C) requires states to develop and implement permitting programs for attainment and nonattainment areas that cover both construction and modification of stationary sources. EPA codified minimum requirements for these State permitting programs including public participation and notification requirements at 40 CFR 51.160-51.164. The EPA originally adopted these rules prior to the creation of the PSD permit program in 1977, which has additional detailed public participation requirements in 40 CFR 51.166(q). 1

EPA is proposing to approve submittals from the State of Texas as revisions to the Texas State Implementation Plan (SIP) that establish the public participation requirements for air quality permits. EPA proposes to find that these submitted revisions to the Texas SIP comply with the CAA and EPA regulations and are consistent with EPA policies. Texas submitted the public participation provisions in four separate submittals for approval to EPA as revisions to the SIP on July 22, 1998, October 25, 1999, July 2, 2010, and March 11, 2011. EPA is proposing this action under section 110 and parts C and D of the Clean Air Act (the Act).

The Texas SIP currently addresses public notice provisions for air quality permits through regulations adopted by the State on June 17, 1998, effective July 8, 1998, at 30 TAC section 116.130—Applicability; section 116.131—Public Notification Requirements; section 116.132—Public Notice Format; section 116.133—Sign Posting Requirements; section 116.134—Notification of Affected Agencies; section 116.136—Public Comment Procedures; and section 116.137—Notification of Final Agency Action. EPA SIP-approved the submitted Sections 116.130, 116.131, 116.132 (except subsections (c) and (d)), 116.133 (except subsections (f) and (g)), 116.134, 116.136, and 116.137 on September 18, 2002 (67 FR 58697), effective October 18, 2002. EPA SIP-approved the submitted Sections 116.132(c) and (d) and 116.133(f) and (g) on March 10, 2006 (71 FR 12285), effective May 9, 2006.

On November 26, 2008, EPA published a proposed limited approval/limited disapproval (LA/LD) of three submittals from the State requesting approval of them as revisions to the Texas SIP pertaining to public notice for air quality permits (see 73 FR 72001). Our proposed LA/LD encompassed revisions submitted by the TCEQ on December 15, 1995; July 22, 1998; and October 25, 1999. Please see the Technical Support Document (TSD) accompanying this action for a complete list of the sections that were the subject of our proposed LA/LD.

On June 2, 2010, the TCEQ adopted amendments to 30 TAC Chapter 39, Public Notice; Chapter 55, Requests for Reconsideration and Contested Case Hearings; Public Comment; and Chapter 116, Control of Air Pollution by Permits for New Construction or Modification; and corresponding revisions to the Texas SIP. These revised rules were submitted for EPA approval as a SIP revision on July 2, 2010, to address our identified concerns in the proposed LA/LD.

At that time, TCEQ also adopted and submitted to EPA the withdrawal from consideration by EPA of revisions to the Texas SIP that were previously submitted to EPA on October 25, 1999; July 31, 2002; and March 9, 2006. Please see the July 2, 2010 SIP submittal cover letter and the TSD for a complete listing of the sections withdrawn. The cover letter and TSD can be found in the rulemaking docket for this action. To summarize the cover letter, on July 2, 2010, the TCEQ withdrew from EPA's consideration as revisions to the SIP all of the public participation rules previously submitted, except for three subsections: 30 TAC sections 39.411(a) and 55.152(b) as adopted in 1999, and currently amended 30 TAC section 39.418(b)(3), submitted to EPA in 1999 as section 39.418(b)(4).

Upon receipt of the new public notice SIP revision submittal, EPA published a withdrawal of our proposed LA/LD on November 5, 2010 (see 75 FR 68291). In that notice we state that we withdrew our proposed LA/LD of 30 TAC sections 39.201, 39.401, 39.403, 39.405, 39.409, 39.411, 39.413, 39.418, 39.419, 39.420, 39.423, 39.601-39.605, 55.1, 55.21, 55.101, 55.103, 55.150, 55.152, 55.154, 55.156, 55.200, 55.201, 55.203, 55.205, 55.209, and 55.211 because these sections are no longer before us for consideration. Additionally, even though the TCEQ left before us for review sections 30 TAC 39.411(a), 39.418(b)(4) and 55.152(b) as adopted October 25, 1999, we withdrew our proposed LA/LD of these subsections. We did not take any further action on these three subsections in the November 5, 2010, notice because we concluded that it was the TCEQ's intent that these three subsections be evaluated with the entirety of the new public participation submittal from July 2, 2010. Our rationale for this approach is fully explained in our November 5, 2010 notice, which can be found in the docket for this rulemaking. In our November 5, 2010 FRN we also withdrew our proposed LA/LD of the submitted sections 116.111, 116.114, 116.116, 116.183, 116.312 and 116.740. We withdrew our action on these submitted sections because they included cross-references to the Chapter 39 public participation rules and we again concluded that it was the TCEQ's intent for these sections to be evaluated with the entirety of the public participation submittal from July 2, 2010. Our November 5, 2010 FRN did not address the submitted repeal of section 116.124; nor has TCEQ withdrawn this repeal from our consideration. Therefore, the October 25, 1999 submitted repeal of section 116.124 remains before EPA for review.

EPA's proposed approval action today addresses portions of four revisions to the Texas SIP submitted on July 22, 1998, October 25, 1999, July 2, 2010, and March 11, 2011.

On June 17, 1998, the Texas Natural Resource Conservation Commission  2 made general corrections and clarifications to 30 TAC Chapter 116—Control of Air Pollution by Permits for New Construction or Modification. Governor George W. Bush submitted these amendments to EPA for approval as revisions to the Texas SIP in a letter dated July 22, 1998. EPA has taken several rulemaking actions over the years on this submitted SIP revision package. However, we have not previously addressed the submittal of the public participation provisions for permit renewal applications at 30 TAC 116.312. Note that the July 22, 1998 submittal of section 116.312 included a repeal and replacement of section 116.312 as submitted December 15, 1995. Therefore, section 116.312 as submitted July 22, 1998 remains before us for review and supersedes the December 15, 1995 submittal.

On September 2 and September 29, 1999, the TCEQ adopted regulations to implement Texas House Bill 801 to establish new procedures for public participation in environmental permitting. Governor George W. Bush submitted these amendments to EPA for approval as revisions to the Texas SIP in a letter dated October 25, 1999. The State also submitted the repeal of section 116.124 at that time. On July 2, 2010, the TCEQ formally withdrew from our consideration all submitted components of the October 25, 1999, submittal, with the exception of sections 39.411(a), 39.418(b)(4), 55.152(b), 116.111(b), 116.114(a)(2), 116.114(a)(2)(A), 116.114(a)(2)(B), 116.114(b)(1), 116.114(c)(1)-(3), 116.116(b)(4) and 116.312. These sections were retained for EPA review and will be analyzed with the entirety of the Public Participation revisions submitted on July 2, 2010.

On June 2, 2010, the TCEQ adopted new and revised regulations concerning Public Notice at 30 TAC Chapter 39; Requests for Reconsideration and Contested Case Hearings; Public Notice at 30 TAC Chapter 55; and Control of Air Pollution by Permits for New Construction or Modification at 30 TAC Chapter 116. Chairman Bryan W. Shaw, Ph.D., submitted these amendments to EPA for approval as revisions to the Texas SIP in a letter dated July 2, 2010. The amendments submitted for approval as revisions to the Texas SIP are as follows: 30 TAC Sections 39.402(a)(1)-(6), (8), and (10)-(12); 39.405(f)(3) and (g), (h)(1)(A)-(4), (6), (8)-(11), (i) and (j); 39.407; 39.409; 39.411(e)(1)-(4)(A)(i) and (iii), (4)(B), (5)(A) and (B), (6)-(10), (11)(A)(i) and (iii) and (iv), (11)(B)-(F), (13) and (15), and (f)(1)-(8), (g) and (h); 39.418(a), (b)(2)(A) and (c); 39.419(e); 39.420(c)(1)(A)-(D)(i)(I) and (II), (D)(ii), (c)(2), (d)-(e), and (h); 39.601; 39.602; 39.603; 39.604; 39.605; 55.150; 55.152(a)(1), (2), (5) and (6); 55.154(a), (b), (c)(1)-(3) and (5), and (d)-(g); 55.156(a), (b), (c)(1), (e) and (g); 116.114(a)(2)(B), (a)(2)(C), (c)(2), and (c)(3); and 116.194. As a result of the submitted amendments to 30 TAC Sections 39.411(f)(8)(A) and 39.605(1)(D), the TCEQ requested on July 2, 2010, that EPA remove from the Texas SIP the corresponding two commitments from paragraph 7 of the July 17, 1987 Texas PSD Supplement.

On July 2, 2010, the TCEQ also submitted a request to withdraw from consideration by the EPA, the new and amended rules that were previously submitted to EPA for approval as revisions to the SIP on October 25, 1999; July 31, 2002; and March 9, 2006. The TCEQ's letter withdrew from our consideration all sections of the 1999, 2002, and 2006 submittals except for 30 TAC sections 39.411(a) and 55.152(b) as adopted in 1999, and section 39.418(b)(3), submitted in 1999 as section 39.418(b)(4).

The TCEQ originally adopted 30 TAC Section 116.194 on January 11, 2006, to establish the public notice provisions for PAL permit applications. The TCEQ submitted these revisions to EPA on February 1, 2006 as a SIP submittal. EPA disapproved these provisions for PAL public notice on September 15, 2010. See 75 FR 56424. On March 11, 2011, the TCEQ resubmitted section 116.194 as adopted January 11, 2006, in addition to the July 2, 2010 amendments to section 116.194. Therefore, section 116.194 as adopted on January 11, 2006, and amended on July 2, 2010, remains before us for review.

The following table identifies the specific sections that were submitted for EPA review and approval into the Texas SIP.

EPA is severing and taking no action on section 116.116(b)(3) as it was submitted on October 25, 1999. Section 116.116(b)(3) applies to the review and permitting of constructed and reconstructed major sources of hazardous air pollutants (HAPs) under section 112(g) of the Act and 40 CFR Part 63, Subpart B. The process for implementing these provisions is carried out separately from a SIP. SIPs cover criteria pollutants and their precursors, as regulated by NAAQS. Section 112(g) of the Act regulates HAPs, this program is not under the auspices of a CAA section 110 SIP, and this program should not be approved into a SIP. Additionally, the submitted section 116.116(b)(3) is severable from the remainder of the Texas public participation submittals. Because the requirements under section 112(g) are self-implementing under section 112(g) of the Act and under 40 CFR part 63, Subpart B, EPA is severing and taking no action on section 116.116(b)(3).

Additionally, EPA is severing and taking no action at this time on the following public participation provisions that were submitted as SIP revisions in the July 2, 2010 submittal:

• Sections 39.402(a)(4) and (a)(5) establishing applicability of public notice provisions for new Flexible Permits and amendments to Flexible Permits under 30 TAC Chapter 116. EPA finds it appropriate to sever and take no action on these Flexible Permit provisions because the Flexible Permits Program is not currently in the Texas SIP. We disapproved the Flexible Permits Program on July 15, 2010 (75 FR 41312). EPA's disapproval was remanded for further action on August 13, 2012. State of Texas, et al. v. EPA, Case No. 10-60614 (5th Circuit, Aug. 13, 2012). TCEQ has revised its rules for the Flexible Permits Program, but the State has not yet submitted those revised rules. If TCEQ submits revised rules for the Flexible Permits Program in the near future, EPA will analyze the public notice provisions for Flexible Permits when we take action on that submittal. Alternatively, EPA will analyze and act on the public notice provisions for Flexible Permits when we address the Flexible Permits Program submittal that is in front of us for SIP approval.

• Sections 39.402(a)(10) and 39.419(e)(3) establishing applicability of public notice provisions for applications for permits, registrations, licenses, or other types of authorizations required to construct, operate or authorize a component of the Future Gen. We are severing and taking no action on Section 39.420(h) which establishes response to comment (RTC) procedures for permit applications for Permits for Specific Designated Facilities under 30 TAC Chapter 116, Subchapter L. EPA finds it appropriate to sever and take no action on the Future Gen public notice provisions and the response to comment procedures because we have not yet acted on the underlying Future Gen permit rules at 30 TAC Chapter 116, Subchapter L. We will review and analyze the public notice provisions for Future Gen when we take action on this permit program.

• Section 39.402(a)(12) establishing public participation provisions pertaining to change of location of a portable facility, consistent with the requirements of 30 TAC section 116.178. EPA has not taken action on the underlying permit provisions for the Relocations and Changes of Location of Portable Facilities. We will analyze the public notice provisions for change of location of portable facilities when we take action on the underlying permit provisions at section 116.178.

• Section 39.405(h)(1)(B) providing alternate language newspaper notice requirements for permit applications that are not air quality permit applications. Permit applications that are not air quality permit applications are beyond the scope of the Texas SIP.

The Texas air quality permitting program consists of several different types of permit actions including permits for new major sources or modifications subject to PSD or NNSR requirements, PAL permit authorizations at existing major sources, new minor sources or minor amendments, and permit renewals. The Texas public participation program is also tiered, providing different levels and scope of public participation to correspond with the type of permit action. The following sections of this proposed action and the accompanying TSD will analyze the public participation process for each type of permit action to determine whether the submitted process is consistent with federal requirements.

The Texas public participation requirements for air quality permit applications are found in three chapters of the TAC: Chapters 39, 55, and 116. Chapter 39 establishes applicability and general processes and requirements for the public notice documentation. Chapter 55 establishes general requirements for public comment periods, public meetings and processing of public comments. Chapter 116 provides general timelines for public comment period and applicability. Each type of air quality permit application follows the same general public notice procedures as outlined below:

1. Applicant submits air quality permit application to TCEQ.

2. TCEQ reviews the application and determines whether the application is administratively complete. During this process, the TCEQ has 90 days to determine the application is complete or request additional information. See 30 TAC 116.114(a)(1).

3. Once the application is administratively complete, the applicant is required to publish the first notice, the Notice of Receipt of Application and Intent to Obtain Permit (NORI), as applicable. See 30 TAC 39.418. The NORI is a unique feature of the Texas Public Notice Process. The NORI provides information to the public about the receipt of an application and provides basic information about the proposed new source or modification such as a description of the location and the nature of the proposed activity, a description of the public comment process, and the location where materials will be made available for review. The NORI does not provide any technical information, but rather serves as an indicator of future public notices and actions that may be of interest, enabling the public to anticipate draft permits. The NORI is required for all air quality permit applications subject to the Chapter 39 public notice provisions except for PAL permit applications. Note that certain permit amendments are exempted from the Chapter 39 public notice provisions as discussed in Section III.D of this proposed action.

4. TCEQ completes the technical review and makes a preliminary decision. The TCEQ has 180 days from the date a new permit application is administratively complete, or 150 days from the date a permit amendment application is administratively complete, to conduct the technical review and make a preliminary decision. See 30 TAC 116.114(a)(2).

5. The applicant is required to publish the second notice, the Notice of Application and Preliminary Decision (NAPD) when notified by TCEQ of the preliminary decision. See 30 TAC 39.419. The NAPD notice provides the information and notice to the public consistent with federal requirements. The NAPD provides details about the preliminary decision and draft permit and the location where applicable air quality analyses and other technical materials will be made available for public review. Additionally for PSD permit applications, the NAPD includes the degree of increment consumption that is expected. The NAPD is required for all air quality permit applications subject to the Chapter 39 public notice provisions with the exception of permit renewals. The NAPD may be required for permit renewal applications depending on the details of the action. Note that certain permit amendments are exempted from the Chapter 39 public notice provisions as discussed in Section III.D of this proposed action.

6. The TCEQ files the Executive Director's (ED) draft permit and preliminary decision, the preliminary determination summary and air quality analysis with the chief clerk and the clerk posts this information on the TCEQ's Web site. See 30 TAC 39.419(e).

7. The comment period runs for 30 days after the last publication of the NAPD discussed in Step 5. See 30 TAC 55.152(a)(1).

8. A public meeting is held if the ED determines there is a substantial or significant degree of public interest; if the meeting is requested by a member of the legislature representing the general area of the proposed facility/modification; if a public meeting is otherwise required by law; or, in the case of a PSD or NNSR permits, the meeting is requested by an interested person. See 30 TAC 55.154(c).

9. The ED prepares a response to all comments received. See 30 TAC 55.156(b)(1).

10. The ED files the response to comments with the chief clerk as soon as practicable, but not later than 60 days after the end of the comment period. See 30 TAC 55.156(b)(3).

11. The chief clerk will mail or transmit the ED decision and the RTC to the applicant, any person who submitted comments and any person on the mailing list for the permit action. See 30 TAC 55.156(c).

12. The ED will take final action on the permit application within one year of a complete PSD, NNSR, or PAL permit application. The ED will take final action on the permit application within 150 days of receipt of a permit amendment application or 180 days for a permit application that is not a PSD/NNSR/PAL application (i.e, application for new minor or a renewal application). The TCEQ's one-year clock is based on the completion of the technical review and the publication of the NAPD as provided in Step 5. See 30 TAC 116.114(c)(3).

Federal public participation requirements for PSD permit applications are at 40 CFR 51.160, 51.161, and 51.166(q). In Texas, 30 TAC 39.402(a)(2) establishes that the requirements found in 30 TAC Chapter 39, Subchapters H and K apply to applications for the new major sources or major modifications for facilities subject to Chapter 116, Subchapter B, Division 6 (PSD permits). Every application for a new major source or major modification subject to PSD permitting requirements will go through public notice with both the NORI and NAPD. Note that the applicant is legally responsible for the publication of the NORI and NAPD, using the specific notice text provided through regulations by the TCEQ. The applicant is also legally responsible for providing copies of the public notice documents to the EPA Regional Office, local air pollution control agencies with jurisdiction in the county, and air pollution control agencies of nearby states that may be impacted by the proposed new source or modification. The submitted Texas public participation rules establish that the applicant, rather than the State permitting authority, as the legally responsible party for satisfying the public notice requirements for PSD applications. The applicant is required to follow the Texas public notice regulations, which specify the text for the notice documents and specify the additional agencies that will receive notice. EPA is proposing to find that the submitted Texas public participation regulations identifying the applicant as the legally responsible party meet the requirements to provide opportunity for public comment and for information availability at 40 CFR 51.161 and 51.166. The NORI and NAPD both identify locations where materials, including the draft permit and all technical materials supporting the decision, will be made available for public review. The TCEQ will also respond to each comment received when making a final permit decision. The TCEQ will provide opportunity for a public meeting on the permit application if requested.

On November 26, 2008, EPA identified several deficiencies in the Texas public participation rules specific to new major sources and modifications subject to PSD permitting requirements. See 73 FR 72001, at 72007-72008. Below we reiterate the deficiencies and discuss how the revised Texas public participation process for PSD applications addresses our concerns. Please also see section IV.B. of the accompanying TSD.

• The public participation rules do not require the TCEQ to provide an opportunity for a public hearing for interested persons to appear and submit written or oral comment on the air quality impact of the source, alternatives to it, the control technology required, and appropriate considerations and to provide notice of the opportunity for a public hearing, as required by 40 CFR 51.166(q)(2)(v).

In the Texas air permit program, the term “public meeting” is equivalent to EPA's term “public hearing”. Section 55.154(a) as submitted July 2, 2010, supports this by stating the purpose of a public meeting is to take public comment. Section 55.154(c)(3) as submitted July 2, 2010, specifies that a public meeting will be held for PSD permit applications when requested by interested persons. Additionally, the NAPD notice for the PSD permit includes the statement that a public meeting will be held upon request by interested individuals. See 30 TAC 39.411(f)(8)(D). The revised public participation SIP submittals address EPA's concerns and resolve the identified deficiency.

• The public participation rules do not require that the public notice of a PSD permit contain the degree of increment consumption that is expected from the source or modification as required by 40 CFR 51.166(q)(2)(iii).

The revised public participation SIP submittals address EPA's concerns. The NAPD notice provisions at 39.411(f)(8)(A) require the public notice document to include the expected degree of increment consumption. Note that the requirement to public notice the expected degree of increment consumption was previously part of paragraph 7 of the Texas PSD Supplement, as submitted to EPA on July 17, 1987, and approved as part of the Texas PSD SIP. On July 2, 2010, the TCEQ officially requested to withdraw this provision of the Texas PSD Supplement from the Texas SIP and requested that EPA approve the provision at 39.411(f)(8) into the Texas SIP in its place. We are proposing that upon final EPA-approval of 30 TAC 39.411(f)(8) into the Texas SIP, EPA will also revise the table at 40 CFR 52.2270(e) to state that the corresponding commitment in paragraph 7 of the PSD supplement has been removed from the Texas SIP and replaced by SIP-approved regulation at 39.411(f)(8)(A).

• The public participation rules do not require a copy of the public notice of a PSD permit to be sent to State and local air pollution control agencies, the chief executives of the city and county where the source would be located and any State or Federal Land Manager or Indian Governing Body whose lands may be affected by emissions from the source or modification, as required by 40 CFR 51.166(q)(2)(iv).

The revised public participation SIP submittals address EPA's concerns. Section 39.605 specifies that the applicant will provide a copy of the public notice to the list of individuals who will receive notice of PSD permit applications, consistent with federal requirements. Note that the requirement to send a copy of the public notice of a PSD permit application was previously part of paragraph 7 of the Texas PSD Supplement, as submitted to EPA on July 17, 1987, and approved as part of the Texas PSD SIP. On July 2, 2010, the TCEQ officially requested to withdraw this provision of the Texas PSD Supplement from the Texas SIP and requested that EPA approve the provision at 39.605 into the Texas SIP in its place. We are proposing that upon final EPA-approval of 30 TAC 39.605 into the Texas SIP, EPA will also revise the table at 40 CFR 52.2270(e) to state that the corresponding commitment in paragraph 7 of the PSD supplement has been removed from the Texas SIP and replaced by SIP-approved regulation at 39.605(1)(D).

• The public participation rules do not require that a response to comments be available prior to final action on the PSD permit, as required by 40 CFR 51.166(q)(2)(vi) and (viii).

The current public participation SIP submittals address EPA's concerns and resolve the identified deficiency. EPA's PSD rules do not require that a permitting authority provide a response to comments prior to final action on the PSD permit. Rather, EPA's rules at 40 CFR 51.166(q)(2)(vi) require that the permitting authority consider all timely comments and make said comments available at the same location as the preconstruction materials used in the permitting decision. The Texas rules at 30 TAC 55.156(b)(1) comply with EPA regulations by requiring that the TCEQ consider all timely, relevant and material, or significant public comment before an application is approved. Further, when making PSD permit decisions, 30 TAC 55.156(b)(1) specifically requires that the TCEQ ED prepare a response to all comments received. The Texas rules at 30 TAC 55.156(b)(1) also require that a response to comments document be prepared prior to the final action on the permit. Interested individuals have access to the response to comments document for each permitting action through the TCEQ's Web site; the address of which is provided in each NAPD notice. The RTC includes a summary of each comment received. The actual comment letters can be obtained from the TCEQ offices.

EPA's analysis of the Texas public participation requirements for PSD permit applications demonstrates that the submitted provisions are consistent with the Act and EPA regulations at 40 CFR 51.160, 51.161 and 51.166(q). Further, the submitted provisions address all deficiencies previously cited in our November 26, 2008 proposed limited approval/limited disapproval of Texas public notice requirements. Therefore, we propose full approval of the Texas public notice provisions for PSD permit applications submitted on July 22, 1998; October 25, 1999; and July 2, 2010.

Federal public participation requirements for NNSR permit applications are at 40 CFR 51.160 and 51.161. Submitted section 30 TAC 39.402(a)(2) establishes that the requirements found in 30 TAC Chapter 39, Subchapters H and K apply to applications for new major sources or major modifications for facilities subject to Chapter 116, Subchapter B, Division 5 (NNSR permits). Every application for a new major source or major modification subject to NNSR permitting requirements will go through public notice with both NORI and NAPD. Note that the applicant is legally responsible for the publication of the NORI and NAPD, using the specific notice text provided through regulations by the TCEQ. The applicant is also legally responsible for providing copies of the public notice documents to the EPA Regional Office, local air pollution control agencies with jurisdiction in the county, and air pollution control agencies of nearby states that may be impacted by the proposed new source or modification. The submitted Texas public participation rules establish the applicant, instead of the State permitting authority, as the legally responsible party for satisfying the public notice requirements for PSD applications. The applicant is required to follow the Texas public notice regulations, which specify the text for the notice documents and specify the additional agencies that will receive notice. EPA is proposing to find that the submitted Texas public participation regulations identifying the applicant as the legally responsible party meet the requirements to provide opportunity for public comment and for information availability at 40 CFR 51.161. The NORI and NAPD both identify locations where materials, including the draft permit and all technical materials supporting the decision, will be made available for public review. The TCEQ will respond to each comment received when making a final permit decision. The TCEQ will also provide opportunity for a public meeting on the permit application if requested.

As explained fully in the accompanying TSD, EPA finds that the public notice process described above for NNSR permit applications satisfies the federal requirements for public notice found at 40 CFR 51.160, 51.161. Also, EPA did not identify any NNSR-specific deficiencies in our November 26, 2008 proposed limited approval/limited disapproval. Therefore, we propose full approval of the Texas public notice provisions for NNSR permit applications submitted on July 22, 1998; October 25, 1999; and July 2, 2010.

Federal public participation requirements for PALs are established at 40 CFR 51.165(f)(4)(B) and (f)(5) and 51.166(w)(4)( b ) and (w)(5). Each of these sections specify that PALs for existing major stationary sources shall be established, renewed, or increased through a procedure that is consistent with 40 CFR 51.160 and 51.161. Additionally, sections 51.165(f)(5) and 51.166(w)(5) require the reviewing authority provide the public with notice of the proposed approval of a PAL permit; at least a 30-day period for submittal of public comment; and the reviewing authority must address all material comments before taking final action on the permit. Submitted Section 39.402(a)(8) establishes that the requirements found in 30 TAC Chapter 39, Subchapters H and K apply to applications for the establishment or renewal of, or an increase in, plant-wide applicability limit permits under 30 TAC Chapter 116, Subchapter C. Unlike the public notice provisions for PSD and NNSR permit applications, the Texas public notice process for PAL permit applications only requires publication of the NAPD. Because the NORI is a unique element to the Texas permit program that is not federally required, the NAPD is sufficient to satisfy federal requirements for notice. The Texas rules at 30 TAC 55.152(a)(1) require a 30-day comment period following the publication of the NAPD. And TCEQ's comment processing procedures at 30 TAC 55.156(b)(1) require that the TCEQ ED prepare a response to all comments received for any application for the establishment or renewal of, or an increase in, a PAL permit.

On November 26, 2008, EPA identified several PAL-specific deficiencies in the Texas public participation rules. See 73 FR 72001, at 72008. Below we reiterate the deficiencies and discuss how the revised Texas public participation process for PAL applications addresses our concerns. Please also see section IV.D. of the accompanying TSD.

• For PALs for existing major stationary sources, there is no provision that PALs be established, renewed, or increased through a procedure that is consistent with 40 CFR 51.160 and 51.161, including the requirement that the reviewing authority provide the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment, consistent with federal PAL rules at 40 CFR 51.165(f)(5) and (11) and 51.166(w)(5) and (11).

The July 2, 2010 public participation submittal includes section 39.402(a)(8). Section 39.402(a)(8) specifies that the Chapter 39 provisions apply to the applications for the establishment or renewal of, or an increase in, PAL permit. Tables IV.D-1 and D-2 in our TSD demonstrate that the July 2, 2010 submittal satisfies requirements at 40 CFR 51.160 and 161. Table IV.D-3 in our TSD demonstrates how the July 2, 2010 submittal satisfies 40 CFR 51.165(f)(5) and (11) and 51.166(w)(5) and (11). The July 2, 2010 public participation submittal addresses EPA's concerns and resolves the identified deficiency.

• For PALs for existing major stationary sources, there is no requirement that the State address all material comments before taking final action on the permit, consistent with 40 CFR 51.165(f)(5) and 51.166(w)(5).

Sections 39.411(e)(4)(A)(i), 39.411(f)(1) and 55.156(b)(1) as submitted July 2, 2010 satisfy the requirement that the TCEQ address all comments before approving a PAL permit application. The July 2, 2010 public participation submittal addresses EPA's concerns and resolves the identified deficiency.

• The applicability provision in section 39.403 does not include PALs, despite the cross-reference to Chapter 39 in Section 116.194.

The July 2, 2010 public participation submittal included section 39.402(a)(8). Section 39.402(a)(8) specifies that the Chapter 39 provisions apply to the applications for the establishment or renewal of, or an increase in, a PAL permit. The July 2, 2010 public participation SIP submittal addresses EPA's concerns and resolves the identified deficiency.

EPA's analysis of the Texas public participation requirements for PAL permit applications demonstrates that the submitted provisions are consistent with the Act, EPA regulations at 40 CFR 51.160, 51.161, 51.165(f)(4)(B) and (f)(5) and 51.166(w)(f)(4)( b ) and (w)(5). Further, the submitted rules address all deficiencies previously cited in our November 26, 2008 proposed limited approval/limited disapproval of Texas public notice requirements. Therefore, we propose full approval of the Texas public notice provisions for PAL permit applications submitted on July 2, 2010, and March 11, 2011.

TCEQ's revised regulations for public participation increase opportunities for public involvement in Minor NSR permitting decisions compared to the current SIP-approved provisions. TCEQ's current SIP-approved rules at 30 TAC 116.130(a) require public notice with the NORI and NAPD for every application for a new minor source. However, for permit amendment applications, the current SIP-approved rules only require public notice at the discretion of the TCEQ Executive Director. This means that under the existing SIP-approved regulations, many permit amendments are not subject to public notice requirements, and that these rules do not specifically define the conditions upon which the Executive Director can require public notice. TCEQ's revised rules continue to require that all applications for new Minor NSR sources go through full public notice with the NORI and NAPD, improve the public notice opportunities for permit amendments, and define conditions for use of the Executive Director's discretion.

TCEQ's revised rules enhance public participation by creating tiered, public notice requirements for permit amendments. Unlike the existing SIP regulations, the revised rules now require that most of permit amendments go through full public notice with the NORI and NAPD. This includes changes to the permits that authorize a change in the character of emissions or a release of an air contaminant not previously authorized, and changes that increase emissions above certain thresholds. But, the new rules retain and refine the TCEQ's director's discretion provisions for two specific types of minor permit amendments—for “de minimis ” or “insignificant” activities. For these amendments, TCEQ will not automatically require an opportunity for public participation. TCEQ justified its approach for permit amendment applications with emissions less than these thresholds using de minimis principles like those established in Alabama Power. 3

Despite these thresholds however, the TCEQ revised rules vest the TCEQ Executive Director with the authority to require public notice for an otherwise exempt permit amendment if there is (1) reasonable likelihood of significant public interest in the activity, (2) reasonable likelihood for emissions impact at a nearby receptor, (3) reasonable likelihood of high nuisance potential from the operation of the facility, or (4) the application involves a facility in the lowest classification under Texas Water Code, Section 5.753 and 5.754 and the Compliance History Rules at 30 TAC Chapter 60.

In sum, the applicability of the Texas public participation requirements for Minor NSR permit applications is outlined at 30 TAC 39.402 as follows:

• New minors—39.402(a)(1). A new minor source can be any source statewide that submits a permit application under Chapter 116, Subchapter B that is not subject to the requirements for new major sources or major modifications for NNSR or PSD at Chapter 116, Subchapter B, Divisions 5 and 6. 4

• Air quality amendments  5 under 30 TAC Chapter 116. Note that a permit amendment is a SIP-approved revision mechanism for an existing Chapter 116, Subchapter B permit. Minor amendments can occur at minor sources or sources that are major for PSD or NNSR whenever:

(a) A change occurs in the character of emissions or release of an air contaminant not previously authorized under the permit (i.e., change in control method or an increase in emission rate)—39.402(a)(3)(A);

(b) The total emissions increase from all facilities to be authorized under the amended permit at a facility not affected by THSC, section 382.020, 6 exceeds the State's established “de minimis” levels—39.402(a)(3)(B);

(c) The total emissions increase from all facilities to be authorized under the amended permit at a facility affected by THSC, section 382.020, exceeds the State's established “insignificant” levels—39.402(a)(3)(C); or

(d) Other minor amendments where the Executive Director determines reasonable likelihood for interest or impact—39.402(a)(3)(D)(i)-(iv).

• Applications for concrete batch plants without enhanced controls authorized by a standard permit under 30 TAC Chapter 116, Subchapter F  7 —39.402(a)(11).

The notice requirements for each type of Minor NSR permit application listed above are generally the same—meaning that a permit amendment will have the same public notice requirements as an application for a new minor source. The submitted Texas rules generally provide that the identified Minor NSR permit applications (all new minor sources, qualifying minor permit amendments, and concrete batch plants without enhanced controls authorized by a standard permit  8 ) will go through public notice consistent with federal requirements at 40 CFR 51.160 and 51.161. These types of Minor NSR permit applications are required to have both NORI and NAPD; therefore, the public will receive notice of the application and have the opportunity to comment on the draft permit and accompanying technical information. Note that the applicant is legally responsible for the publication of the NORI and NAPD, using the specific notice text provided through regulations by the TCEQ. The applicant is also legally responsible for providing copies of the public notice documents to the EPA Regional Office, local air pollution control agencies with jurisdiction in the county, and air pollution control agencies of nearby states that may be impacted by the proposed new source or modification. EPA is proposing to find that the submitted Texas public participation regulations identifying the applicant as the legally responsible party meet the requirements to provide opportunity for public comment and for information availability at 40 CFR 51.161. The NORI and NAPD both identify locations where materials, including the draft permit and all technical materials supporting the decision, will be made available for public review. The TCEQ will respond to each comment received when making a final permit decision. The TCEQ will also provide opportunity for a public meeting on the permit application if requested.

As explained above, the submitted Texas public participation provisions create a tiered program, wherein two certain types of Minor NSR amendment applications that have been defined by TCEQ as “de minimis” or “insignificant” will not automatically require public notice. The following outlines the specific thresholds that qualify as “de minimis” or “insignificant” under the revised rules, and the basis for TCEQ's determination.

• Thresholds are only used for permit amendment applications. Applications for new Minor NSR sources are now required by these submitted rules to go through the public procedures of the NORI and NAPD. The minor permit amendment applications are further divided based on the amount of emission increases at issue and whether the facility is affected by THSC section 382.020.

• THSC section 382.020 applies to an agricultural facility such as corn mill, cotton gin, feed mill, grain elevator, peanut processing facility or rice drying facility.

○ Section 39.402(a)(3)(B) provides that if the permit amendment application is not for an affected agricultural facility then the public notice provided through the NORI and NAPD apply, unless the total emissions increase from all facilities authorized in the amendment does not exceed any of the following levels established by the State as “de minimis” levels:

50 TPY CO

10 TPY SO 2

0.6 TPY lead

5 TPY of NO X , VOC, PM, or any other contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen.

○ Section 39.402(a)(3)(C) provides that if the permit amendment is for an affected agricultural facility, then the public notice requirements of the NORI and NAPD apply, unless the total emissions increase from all authorized facilities in the amendment does not exceed any of the following thresholds established by the State as “insignificant” thresholds:

250 TPY CO or NO X

25 TPY of VOC, SO 2 , PM or any other air contaminant except CO 2 , H 2 O, N 2 , CH 4 , C 2 H 6 , H 2 and O 2 .

A new major stationary source or major modification threshold as defined in section 116.12 of this title

A new major stationary source or major modification threshold, as defined in 40 CFR 52.21 under the PSD requirements

• If the permit amendment application includes proposed emissions increases of any air contaminant above the identified threshold then the amendment application is required to go through notice pursuant to Chapter 39 requirements. That means the permit amendment application will go through the NORI and NAPD publication process.

The thresholds established by the State as “de minimis” thresholds apply to all minor permit amendment applications, except those for affected agricultural facilities. The Texas “de minimis” thresholds submitted on July 2, 2010, were originally adopted by the TCEQ in 2001 after a rulemaking process consistent with the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001. TCEQ solicited, received and responded to comments during the 2001 rulemaking process. The TCEQ provided further opportunity to comment on the scope of its minor NSR program, and on the selected “de minimis” thresholds during the proposal of the July 2010 rulemaking, but there were no additional comments on the “de minimis” threshold values.

During the State's rulemaking process for the current Texas public participation rules that have been submitted to the EPA, the TCEQ reviewed its rationale for the scope of the minor NSR program and its rationale for the selection of the “de minimis” thresholds. TCEQ found that the rationale developed in 2001 was still relevant and factual; therefore the rationale was resubmitted as part of the July 2, 2010 Public Participation SIP submittal. The TCEQ presents the rationale for the selection of the “de minimis” thresholds in the June 18, 2010 Texas Register, pages 5226-5228. The “de minimis” thresholds are generally based on EPA's significant emission rates and significant impact levels (which are themselves a percentage of the applicable NAAQS) that together are used to determine whether a proposed source or modification will have a significant impact. The TCEQ also accounted for all averaging periods for each NAAQS in the development of the “de minimis” thresholds.

For example, in developing the “de minimis” threshold for SO 2 , the TCEQ noted that EPA's federal significance level of 40 TPY was based on a design value concentration of 4% of the 24-hour NAAQS. See 45 FR 52675, at 52705-52710 (August 7, 1980), for further information on how EPA established the significance levels for criteria pollutants. The TCEQ determined that a “de minimis” emission rate of 10 TPY is more appropriate because it is based on a design value concentration of 1% of the lowest significant impact level (SIL) to NAAQS ratio that would trigger a detailed air quality analysis for any of the three SO 2 NAAQS averaging periods.

Within the scope of the Texas Minor NSR program, the “de minimis” thresholds distinguish those minor permit amendment applications that require full review from those that may not. But, the thresholds do not affect any part of the technical review of these minor permit amendment applications or the requirement to comply with other requirements such as application of required control technology, reporting when required to the emissions inventory, and analysis of monitoring data. Additionally, being below the “de minimis” threshold does not override any notice or technical requirements for PSD, NNSR or new Minor NSR permit applications. We propose to find that TCEQ provided an adequate demonstration to show that their selected “de minimis” thresholds for permit amendments are based on insignificant emission rates and insignificant emissions impact.

The thresholds selected by the State and called “insignificant” thresholds apply only to minor permit amendment applications for affected agricultural facilities. TCEQ originally adopted the “insignificant” thresholds submitted on July 2, 2010, for minor permit amendment applications at affected agricultural facilities in 2001 after a rulemaking process consistent with the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001. TCEQ solicited, received, and responded to comments during the 2001 rulemaking process. The TCEQ provided further opportunity to comment on the selected “insignificant” thresholds during the proposal of the July 2010 rulemaking but received no additional comments on the “insignificant” threshold values.

During the rulemaking process for the current Texas public participation rules, the TCEQ reviewed the rationale for the selection of the “insignificant” thresholds. TCEQ found that the rationale developed in 2001 was still relevant and factual; therefore the rationale was resubmitted as part of the July 2, 2010 Public Participation SIP submittal. The TCEQ presents the rationale for the selection of the “insignificant” thresholds in the June 18, 2010 Texas Register, pages 5228-5230. TCEQ states that its discretionary public participation program for selected agricultural facilities with emissions increases below the State's defined “insignificant” thresholds is “intended to focus the attention of the public and the commission on emission increases that could have a greater potential for public interest and questions regarding impacts to public health and welfare.”

TCEQ further provided a review of the sources subject to THSC 382.020 from September 2001 through March 2010. This review indicates that the TCEQ processed 356 permit amendment applications for subject agricultural facilities. These agricultural facilities are located in approximately 88 counties, many of which are rural areas in west Texas, and many of these applications were associated with cotton gins. These amendment applications accounted for about 10% of the amendment applications for all types of facilities (not just these selected agricultural facilities) processed during that time period. The primary pollutant of concern in these applications is particulate matter (PM). No area in Texas is designated as nonattainment for PM 2.5 (or PM less than 2.5 microns in diameter). El Paso, Texas is designated as nonattainment for PM 10 (or PM less than 10 microns in diameter); but the designation is based on historical transport of particulate emissions from the Ciudad Juarez, Mexico area. See 59 FR 02532, January 18, 1994. TCEQ reviewed dispersion modeling results from 1990 and 1994 and found that El Paso would be in attainment for the PM standards, but for the emissions transport from Ciudad Juarez. Because the TCEQ has issued no nonattainment or PSD permits for agricultural facilities in the El Paso area and none of the permit amendment applications during the applicable time period were for facilities in El Paso County, the TCEQ has determined that PM emissions generated by the handling, loading, unloading, drying, manufacturing or processing of grain, seed, legumes or vegetable fibers are not of concern in El Paso. Further, the TCEQ has only issued one PSD permit statewide for an agricultural facility under THSC 382.020, and that is for a brewery. Therefore, TCEQ concluded that the “insignificant” thresholds for agricultural facilities would not negatively impact the El Paso area or any other area in Texas.

Like, the selected “de minimis” thresholds, the state's chosen “insignificant” thresholds are used to distinguish those agricultural facilities for which permit amendments require full review from those that may not. However, within the scope of Texas's revised rules, the thresholds do not affect any part of the technical review of these permit amendment applications; or the requirement to continue to comply with other requirements such as application of appropriate control technology, reporting when required to the emissions inventory, and analysis of monitoring data. Further, the discretionary public notice for minor permit amendments at selected agricultural facilities does not override any notice or technical requirements for PSD, NNSR or new Minor NSR permit applications. We believe that TCEQ provided an adequate demonstration to show that their selected “insignificant” thresholds for permit amendments for selected agricultural facilities are limited in scope, apply to a limited subcategory of sources, and represent a small subset of the permit amendment universe. We propose to find this demonstration meets 40 CFR 51.160 and 51.161.

The Federal requirements for Minor NSR permit applications and public notice requirements are at 40 CFR 51.160 and 161. These requirements establish the minimum requirements for approvability of a state's Minor NSR SIP, which a state develops to prevent construction and modification of stationary sources from interfering with an area's ability to achieve compliance with a NAAQS. These requirements generally require 30 days public review for all sources subject to the Minor NSR; however, these requirements also allow a State to identify the types and sizes of facilities, buildings, structures, or installations, which will require full preconstruction review by justifying the basis for the State's determination of the proper scope of its program. 9 Importantly, our decision to approve a State's scope of its Minor NSR program must consider the individual air quality concerns of each jurisdiction, and therefore will vary from state to state.

On November 26, 2008, EPA identified several Minor NSR-specific deficiencies in the Texas public participation rules. See 73 FR 72001, at 72007. Below we reiterate the deficiencies and discuss how the revised Texas public participation process for Minor NSR applications submitted for EPA approval on July 2, 2010, address our concerns. In sum, as discussed more fully in the following section, we propose to find that that the July 2, 2010 submitted Tiered public participation requirements improve upon the existing SIP-approved requirements for public notice, that the rules resolve the concerns we expressed in November 2008, and that the regulations satisfy the requirements of 51.160 and 51.161.

Please note that the July 2, 2010 public participation SIP submittal reorganized and restructured some of the previous rule language. As such, the italicized passages below contain references to specific rule citations and provisions that do not have a direct corollary to the July 2, 2010 rules before us now. See the discussion in section I.B of this proposed action for a history of the Texas Public Participation rule submittals. The bulleted list and subsequent analysis demonstrates that the deficiencies EPA previously identified on November 26, 2008, have been addressed through the current public participation submittal of July 2, 2010. Please also see section IV.E. of the accompanying TSD.

• Under section 39.419(e) for new or modified Minor NSR sources or minor modifications at major sources, the rules do not require public notice and the opportunity for comment on the State's analysis of the effect of construction or modification on ambient air quality, including the agency's proposed approval or disapproval, as required by 40 CFR 51.161(a) and (b), unless a contested case hearing is requested and not withdrawn after notice of application and intent to obtain a permit (NORI) is published.

The July 2, 2010 public participation SIP submittal has expanded the requirement to publish the NAPD to all new minor sources or minor modifications under Chapter 116, Subchapter B. See 30 TAC 39.419(e). As demonstrated in the accompanying TSD, the NAPD notice is consistent with 40 CFR 51.161(a) and (b) to provide notice and opportunity to comment on the state's analysis and the preliminary determination. The public participation provisions submitted July 2, 2010 address the identified deficiency.

• Under section 39.402(a)(3)(C) [Note that during the proposed LA/LD the section we cited was section 39.403(b)(8), this section number was changed to 39.402(a)(3)(C) when the rule was submitted July 2, 2010], for a Minor NSR permit amendment or minor modification under section 116.116(b), (where there is a change in the method of control of emissions; a change in the character of the emissions; or an increase in the emission rate of any air contaminant) the existing SIP requires the permit holder to apply for and receive approval of a permit amendment. However, the revised rules [submitted October 25, 1999] do not require any public participation as required by 40 CFR 51.161(a) and (b) unless the change involves construction of a new facility or modification of an existing facility that results in an increase in allowable emissions equal to or greater than 250 tpy of CO or NO X ; or 25 tpy of VOC or SO 2 or PM 10 ; or 25 tpy of any other air contaminant except carbon dioxide, water, nitrogen, methane, ethane, hydrogen, and oxygen or other changes within the discretion of the Executive Director.

The concern as stated at the time of our proposed LA/LD was that a permit amendment below the identified thresholds would not receive public notice. Nonetheless, as explained above, EPA recognizes a State's ability to tailor the scope of its minor NSR program as necessary to achieve and maintain the NAAQS. As outlined above, the State justified the scope of its regulatory program, and thus the permit applications for which full public review is necessary using de minimis principles like those established in Alabama Power to identify amendments that are not environmentally significant. Specifically, it identified “de minimis” and “insignificant” thresholds for which review with public participation may or may not be necessary depending on whether the amendment triggers public review under the specified Executive Director's criteria.

• Under section 39.419(e)(1)(C), for any amendment, modification or renewal of a major or minor source which requires a permit application, the rules do not require public notice and the opportunity for comment on the State's analysis of the effect of construction or modification on ambient air quality, including the agency's proposed approval or disapproval, as required by 40 CFR 51.161(a) and (b), if the amendment, modification, or renewal would not result in an increase in allowable emissions and would not result in the emission of an air contaminant not previously emitted unless the application involves a facility for which the applicant's compliance history contains violations that are unresolved and that constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including the failure to make a timely and substantial attempt to correct the violations.

At the time of the November 26, 2008 proposed limited approval/limited disapproval, section 39.419 included subsection (e)(1)(C) which exempted minor NSR permit applications from publication of the second notice, or NAPD. In response to our proposed limited approval/limited disapproval, the TCEQ expanded the publication of the NAPD to cover Minor NSR permit applications and specified Minor NSR permit amendment applications. The July 2, 2010 public notice SIP submittal requires NORI and NAPD public notice for all new minor sources and all permit amendments above identified “de minimis” and “insignificant” emission thresholds. For permit amendment applications with emissions less than these thresholds, the TCEQ justified its approach using de minimis principles like those established in Alabama Power. See the June 18, 2010 Texas Register, pages 5224-5230. Additionally, requiring NORI and NAPD notice for amendments above a specified emissions threshold is more stringent than the existing SIP; which only requires public notice of minor amendments at the discretion of the Executive Director. The July 2, 2010 SIP submittal addresses the identified concerns.

• Section 39.403(b)(8), Applicability, of the revised rule refers to two State statutory provisions, THSC section 382.0518 (preconstruction permit) and section 382.055 (review and renewal of preconstruction permit). For clarity, and for approvability into the SIP, section 39.403(b) should be revised to refer to the corresponding sections of the Texas SIP.

Subsequent to our withdrawal of the proposed rule, EPA has determined that this provision does not contravene federal requirements. Generally, we do not approve cross-references that are not otherwise SIP-approved. But, in these instances, the statutory provisions serve to provide more clarity to the subset of sources identified in the rule language. Note that since the time of the proposed limited approval/limited disapproval, TCEQ has withdrawn from our consideration the prior version of Chapter 39 that was submitted for SIP approval, and resubmitted a new version of Chapter 39. The sections discussing Applicability of the public participation program that include cross-references to statutes are now located at Section 39.402(a)(3)(B) and (C). In this instance, the statute mentioned is THSC section 382.020 concerning agricultural facilities. Inclusion of the statutory citation to THSC section 382.020 provides additional clarity to the submitted provision.

We propose to find that the July 2, 2010 submitted public notice provisions, including the tiered public participation approach for permit amendments, improve upon the existing SIP-approved requirements for public notice by expanding opportunities for public involvement in minor NSR permitting decision. We further propose to find that TCEQ's demonstrations in the July 2, 2010 public notice SIP submittal adequately justify the scope of activities that require full review with public participation, because it potentially excludes only those permit amendments that meet the state's selected “de minimis” and “insignificant” thresholds that the State has shown are environmentally insignificant. Accordingly, EPA proposes to find that TCEQ's tiered public participation program satisfies the provisions of 51.160(e) and 51.161. Moreover, we also propose to find that the TCEQ revised rules for discretionary public notice are approvable, because the provisions adequately confine Executive Director discretion by authorizing the use of discretion under specified criteria that are consistent with the goals and purposes of the Act to provide an adequate opportunity for informed public participation. EPA is proposing to find that the submitted Texas public participation regulations identifying the applicant as the legally responsible party also meet the requirements to provide opportunity for public comment and for information availability at 40 CFR 51.161, because the NORI and NAPD both identify locations where materials, including the draft permit and all technical materials supporting the decision will be made available for public review and the required information is submitted to EPA.

Finally, as explained above, we propose to find that the submitted provisions address all deficiencies we previously cited in our November 26, 2008 proposed limited approval/limited disapproval of Texas public notice requirements. Accordingly, we propose full approval of the Texas public notice provisions for Minor NSR permit applications submitted on July 22, 1998; October 25, 1999; and July 2, 2010.

EPA SIP-approved the Texas provisions for renewal of Title I permits at 30 TAC Chapter 116, Subchapter D, Sections 116.310-116.315, on March 10, 2006 (71 FR 12285), with revisions approved on March 20, 2009 (74 FR 11851), March 11, 2010 (75 FR 11464) and November 14, 2011 (76 FR 70354). Therefore, permit renewals issued under 30 TAC Chapter 116, Subchapter D are SIP-approved Title I permits and we have evaluated the public participation requirements for said permits. Section 39.402(a)(6) establishes that the requirements found in 30 TAC Chapter 39, Subchapters H and K apply to applications for renewal of Chapter 116 permits. Section 116.312, Public Notification and Comment Procedures specific to permit renewals, provides a cross-reference to the public participation rules under Chapter 39. Generally, permit renewal applications are required to publish NORI and provide a 15-day comment period. In some instances, permit renewal applications will be required to publish NAPD and provide a 30-day comment period. The TCEQ is required to respond to any comments received and provide a response to comments with the final permit decision. Under the Texas SIP-approved permit renewal process, a Title I permit is required to be renewed every ten years. A permit renewal application is approved based upon a demonstration in the renewal application that the permitted facility will operate in accordance with all requirements and conditions of the existing permit, including representations in the application to construct, any subsequent amendments, any previously granted renewal, and the compliance history of the facility. Parts C and D of the Act and EPA's federal NSR requirements regulate preconstruction of sources and neither prohibit, nor require Title I permits (PSD/NNSR/Minor NSR) to be periodically renewed. As such, the State's renewals provisions go beyond the minimum requirements of the Act. While neither the Act nor EPA's regulations address the public notice of permit renewals, we propose to find that approval of public notice for permit renewals will enhance the SIP-approved renewals program.

As explained fully in the accompanying TSD, EPA proposes to find that the public notice process described above for permit renewal applications satisfies the federal requirements for public notice found at 40 CFR 51.160 and 51.161 and is consistent with the requirements at section 110(a)(2)(C) of the Act to provide continued implementation and enforcement of the NSR SIP permitting program. EPA did not identify any renewal-specific deficiencies in our November 26, 2008 proposed limited approval/limited disapproval. Therefore, we propose full approval of the Texas public notice provisions for permit renewal applications submitted on July 22, 1998; October 25, 1999; and July 2, 2010.

Section 110(l) of the CAA states:

Each revision to an implementation plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act .

Thus, under section 110(l), the regulations submitted as a SIP revision for public participation for air quality permit applications must meet the procedural requirements of section 110(l) by demonstrating that the State followed all necessary procedural requirements such as providing reasonable notice and public hearing of the SIP revision. Additionally, the SIP revision must demonstrate that the adopted rules will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. We propose to find that the TCEQ satisfied all procedural requirements pursuant to section 110(l) as detailed in our accompanying TSD.

Public participation in air quality permitting is a requirement of the CAA. EPA regulations at 40 CFR Part 51, sections 51.160 and 51.161 provide the general requirements that all air quality permits must address; sections 51.165(f)(5) and 51.166(w)(5) provide the requirements specific to PAL permitting; and section 51.166(q) provides further public notice provisions specific to PSD permitting. As discussed in this proposed action and in the accompanying TSD, EPA proposes that the public notice processes as submitted by the TCEQ satisfy the minimum requirements of 40 CFR 51.160, 51.161, and where applicable, 51.165 and 51.166. Additionally, we propose that TCEQ provided an adequate demonstration to show that the Minor NSR public notice tiers and exemptions will assure the NAAQS are achieved and that the tiers and exemptions meet the de minimis principles set forth in Alabama Power. Our review and analysis demonstrates that the submitted regulations are at least as stringent as the minimum federal requirements and existing SIP requirements; and in some instances the Texas program provides notice beyond the minimum federal requirements. The act of providing notice on air quality permit applications consistent with the provisions submitted by the TCEQ on July 22, 1998; October 25, 1999; July 2, 2010; and March 11, 2011 will provide more visibility and detail of the air permitting process. The Texas Public Participation SIP submittals satisfy section 110(l) of the CAA.

Under section 110 and parts C and D of the Act, and for the reasons stated above, EPA proposes to approve the following revisions to the Texas SIP:

• 30 TAC Section 116.312 and the repeal of 30 TAC Section 116.124 as submitted on July 22, 1998.

• 30 TAC Sections 39.411(a); 39.418(b)(4); 55.152(b); 116.111(b); 116.114(a)(2), (a)(2)(A), (a)(2)(B), (b)(1), and (c)(1)-(3); 116.116(b)(4); and 116.312 as submitted on October 25, 1999.

• 30 TAC Sections 39.402(a)(1)-(3), (a)(6); 39.405(f)(3) and (g), (h)(1)(A), (h)(2)-(h)(4), (h)(6), (h)(8)-(h)(11), (i) and (j); 39.407; 39.409; 39.411(e)(1)-(4)(A)(i) and (iii), (4)(B), (5)(A) and (B), (6)-(10), (11)(A)(i), (iii) and (iv), (11)(B)-(F), (13) and (15), and (f)(1)-(8), (g) and (h); 39.418(a), (b)(2)(A), (b)(3) and (c); 39.419(e); 39.420(c)(1)(A)-(D)(i)(I) and (II), (D)(ii), (c)(2), (d)-(e); 39.601; 39.602; 39.603; 39.604; 39.605; 55.150; 55.152(a)(1), (2), (5) and (6); 55.154(a), (b), (c)(1)-(3) and (5), (d)-(g); 55.156(a), (b), (c)(1), (e) and (g); 116.114(a)(2)(B), (a)(2)(C), (c)(2) and (c)(3); and 116.194(a) and (b) as submitted on July 2, 2010.

• 30 TAC Section 116.194 as adopted January 11, 2006 and resubmitted on March 11, 2011.

Note that EPA is proposing to approve provisions at 30 TAC 39.411(f)(8)(A) and 39.605(1)(D) that will replace two provisions of the Texas SIP, found in the Texas PSD SIP Supplement. Upon finalization of this action, EPA will revise the table at 40 CFR 52.2270(e) to reflect these approvals.

Consistent with the analysis presented in today's proposed notice and the accompanying TSD, EPA is severing and taking no action on the following provisions submitted on July 2, 2010: 30 TAC Sections 39.402(a)(4), 39.402(a)(5), 39.402(a)(10), 39.402(a)(12), 39.405(h)(1)(B), 39.419(e)(3), 39.420(h). EPA is also severing and taking no action on the following provisions submitted on October 25, 1999: 30 TAC Sections 116.111(a)(2)(K), and 116.116(b)(3).

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

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

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

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

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

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

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

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

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

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

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

The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

In the proposed rule published at 75 FR 29238 and 76 FR 62006, in the May 25, 2010 and October 6, 2011, issues of the Federal Register , respectively, FEMA published a table under the authority of 44 CFR 67.4. The tables, entitled “Iron County, Utah, and Incorporated Areas” addressed the following flooding sources: Coal Creek, Coal Creek Overflow, Coal Creek to Fiddlers Split, Cross Hollow, Greens Lake, North Airport Canal, Old Quichapa Creek Lower, Old Quichapa Creek Upper, Parowan Creek, Quichapa Channel, Quichapa West, Red Creek, Shurtz Creek, Shurtz Creek Shallow, Squaw Creek and Water Canyon. The tables contained inaccurate information as to the location of referenced elevation, effective and modified elevation in feet, and/or communities affected for that flooding source. In this notice, FEMA is publishing a table containing the accurate information, to address these errors. The information provided below should be used in lieu of that previously published in both tables.

Table of Contents I. Executive Summary II. Background A. Overview of Event Data Recorder (EDR) Technology B. EDR Regulatory History—The Establishment of Part 563 C. Summary of Part 563 1. Data Elements Recorded 2. Data Retrieval 3. Data Survivability and Crash Test Performance Requirements D. NHTSA's Validation of and Reliance on EDR Data in Its Crash Investigations Relating to Unintended Acceleration III. Proposal A. Overview 1. Overall Plan for Reviewing and Upgrading EDR Requirements 2. This Proposal B. Reasons To Mandate the Installation of EDRs C. Reasons To Place Mandate in a Safety Standard D. Privacy Issues 1. Agency Tailored EDR Performance Requirements To Minimize Data Gathering 2. Agency Seeks Vehicle Owner Permission To Access EDR Data 3. Necessity of VIN Collection 4. Agency Protects VIN Information Needed To Download EDR Data 5. Agency Uses and Stores EDR Data in Ways To Preserve Privacy E. Lead Time F. Benefits and Costs of This Proposal IV. Rulemaking Analyses and Notices V. Request for Comments Appendix A Part 563 Tables Regulatory Text I. Executive Summary

An event data recorder (EDR) is a function or device installed in a motor vehicle to record technical information about the status and operation of vehicle systems for a very brief period of time (i.e., a few seconds) and in very limited circumstances (immediately before and during a crash), primarily for the purpose of post-crash assessment of vehicle safety system performance. 1 EDR data are used to improve crash and defect investigation and crash data collection quality to assist safety researchers, vehicle manufacturers, and the agency to understand vehicle crashes better and more precisely. Additionally, vehicle manufacturers are able to utilize EDR data in improving vehicle designs and developing more effective vehicle safety countermeasures. EDR data can also be used by Advanced Automatic Crash Notification (AACN) systems to aid emergency response teams in assessing the severity of a crash and estimating the probability of serious injury before they reach the site of the crash.

The installation of EDR technology has increased considerably within the light vehicle fleet, as most manufacturers have voluntarily chosen to install some type of EDR capability in their vehicles. The light vehicles most likely to be equipped with EDRs are those that are required to be equipped with frontal air bags, i.e., passenger cars, multipurpose passenger vehicles (MPVs), trucks, and buses with a gross vehicle weight rating (GVWR) of 3,855 kilograms (kg) (8,500 pounds) or less and an unloaded vehicle weight of 2,495 kg (5,500 pounds) or less. We estimate that about 92 percent of model year (MY) 2010 passenger cars and other vehicles with a GVWR of 3,855 kg or less have some EDR capability.

In August 2006, NHTSA established 49 CFR Part 563 (Part 563), which sets forth requirements for data elements, data capture and format, data retrieval, and data crash survivability for EDRs. The requirements apply to light vehicles required to have frontal air bags (those with a GVWR of 3,855 kg or less and an unloaded vehicle weight of 2,595 kg or less)  2 that are manufactured on or after September 1, 2012, and are equipped with EDRs. Thus, the regulation applies to only those vehicles that are voluntarily equipped with EDRs.

This notice of proposed rulemaking would establish a new safety standard mandating the installation of EDRs for all light vehicles that are required to have frontal air bags and are manufactured on or after September 1, 2014. The EDRs in those vehicles would be required by the new standard to meet the data elements, data capture and format, data retrieval, and data crash survivability requirements contained in Part 563. The agency is issuing this proposal because we believe that, without a regulation, EDRs will remain absent from the estimated 8 percent of the current light vehicle fleet that lacks an EDR. We believe that requiring all light vehicles required to have frontal air bags to be equipped with EDRs would help improve vehicle safety for consumers, while imposing relatively limited costs on the automobile industry.

NHTSA is proposing today's NPRM under the National Traffic and Motor Vehicle Safety Act (“Motor Vehicle Safety Act”). Under 49 U.S.C. Chapter 301, Motor Vehicle Safety (49 U.S.C. 30101 et seq. ), the Secretary of Transportation is responsible for prescribing motor vehicle safety standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms. 3 “Motor vehicle safety standard” means a minimum performance standard for motor vehicles or motor vehicle equipment. When prescribing such standards, the Secretary must consider all relevant, available motor vehicle safety information. 4 The Secretary must also consider whether a proposed standard is reasonable, practicable, and appropriate for the types of motor vehicles or motor vehicle equipment for which it is prescribed and the extent to which the standard will further the statutory purpose of reducing traffic accidents and associated deaths. 5 The responsibility for promulgation of Federal motor vehicle safety standards is delegated to NHTSA. In proposing to require the installation of EDRs in most light vehicles manufactured on or after September 1, 2014, the agency carefully considered these statutory requirements.

Placing the mandate in a FMVSS, instead of Part 563, would expand its ability to avail itself of the enforcement authority of the Motor Vehicle Safety Act, making it possible to seek civil penalties for failure to provide an EDR or for failure to provide one that performs properly. We believe that this step is necessary to ensure that all manufacturers install EDRs and that the agency has full and accurate EDR information for all light vehicles required to have frontal air bags.

The benefits of this proposal would be to expand and, therefore, enhance the utilization of the recorded information and lead to further improvements in the safety of current vehicles as well as future ones. A disproportionately high percentage of the light vehicles that would be affected by this proposal are relatively expensive vehicles and thus are significantly more likely than the typical light vehicle to be equipped with advanced safety features and systems, including advanced collision avoidance technologies. Thus, the light vehicles that would be affected by this proposal are the ones on which data regarding real world performance will most likely first be generated. It is important to have EDR data relating to the crash experiences of vehicles with these advanced safety systems so that the agency can, at the earliest possible time, gather enough information about emerging advanced technologies to conduct reliable analyses and make policy judgments. Additionally, the agency's experience in handling unintended acceleration and pedal entrapment allegations has demonstrated that EDR data from a particular vehicle model can have significant value to both the agency and the vehicle's manufacturer to identify and address safety concerns associated with possible defects in the design or performance of the vehicle. To serve this purpose for all light vehicles required to have frontal air bags, EDR data must be available for all such vehicles.

This proposal would not change any of the substantive requirements of Part 563. The agency recognizes that there have been advances in vehicle safety systems and the implementation of new FMVSSs since the publication of the EDR final rule in 2006. 6 However, the issue of whether there should be any changes to the amount and type of information that EDRs must collect is not being considered in this rulemaking. This proposal would also not modify any of the requirements or specifications for EDRs voluntarily installed between September 1, 2012 and September 1, 2014.

We believe that the costs of installing EDRs are minimal because the devices involve the capture into memory of data that are already being processed by the vehicle, and not the much higher costs of providing sensors to obtain much of that data in the first place. The cost for an EDR is estimated to be $20 per vehicle. The estimated total incremental costs associated with this proposal would be $26.4 million (2010 dollars), which reflects the need for technology improvements, as well as assembly costs, compliance costs, and paperwork maintenance costs for those 1.32 million vehicles that have a GVWR of 3,855 kg or less, but do not currently have EDRs. Technological improvements account for the majority of these costs.

The agency acknowledges that consumer privacy concerns persist regarding EDR data: Who owns it, who has access to it and under what circumstances, and what are the purposes for which it may be used. Approximately one dozen states have enacted laws addressing these issues. While these issues are of continued importance in the public discussion on the use of EDR technology, as an agency, we do not have the statutory authority to address many of these privacy issues because they are generally matters of State and Federal law that we do not administer. Within the limits of its authority, NHTSA has consistently sought to promote the recording of vital crash event information and to access and use that information in ways that safeguard privacy. For example, the agency seeks to access EDR data only with the vehicle owner's permission.

An EDR is a function or device installed in a motor vehicle to record technical information about the status and operation of vehicle systems for a very brief period of time (i.e., a few seconds immediately before and during a crash), primarily for the purpose of post-crash assessment of vehicle safety system performance. 7 In most cases, the type of crash that leads to the capturing of data is a frontal or side collision that is sufficiently severe to cause the air bags to deploy. Data collected from the EDR of a crash-involved vehicle can provide valuable information on the severity of the crash, operation of its air bags, and what air bag deployment decision strategies were used during the event. Additionally, the data can be used to assess whether the vehicle was operating properly at the time of the event, or to help detect undesirable operations that may lead to a recall of the vehicle to remedy the problem. The information obtained by manufacturers from EDRs aids them in improving vehicle performance in crash events.

In recent years, the installation of EDR technology has increased considerably within the light vehicle fleet, as most manufacturers have voluntarily chosen to install some type of EDR capability in their vehicles. The light vehicles most likely to be equipped with EDRs are those that are required to be equipped with frontal air bags, i.e., passenger cars, multipurpose passenger vehicles (MPVs), trucks, and buses with a GVWR of 3,855 kilograms (kg) (8,500 pounds) or less and an unloaded vehicle weight of 2,495 kg (5,500 pounds) or less. These vehicles compose the vast majority of light vehicles. We estimate that about 92 percent of model year (MY) 2010 passenger cars and other vehicles with a GVWR 3,855 kg (8,500 pounds) or less have some EDR capability. This estimate is based on information that was taken from manufacturer-reporting to the agency regarding their 2010 vehicles and then weighting using 2010 corporate-level vehicle projected sales figures to estimate an overall industry-wide fleet figure.

For manufacturers that install EDRs in most light vehicles on or after September 1, 2012, the current regulation, 49 CFR Part 563 (Part 563), requires that their EDRs record 15 data elements at a minimum, and sets requirements for the range and accuracy of the EDR data collected under the regulation. The discussion below explains in detail the requirements of Part 563.

For more background information on NHTSA's rulemaking actions regarding EDR technologies, please see the Notice of Proposed Rulemaking (NPRM) at 69 FR 32932 (June 14, 2004), 8 the final rule at 71 FR 50998 (August 28, 2006), 9 and amendments to the final rule and responses to petitions for reconsideration at 73 FR 2168 (January 14, 2008), 10 76 FR 47478 (August 5, 2011), and 77 FR 47552 (August 9, 2012).

For more than a decade, the agency has been assessing the potential value of real-world EDR crash data for improving our understanding of vehicle safety system performance and our analysis of vehicle crashes. Several years ago, NHTSA working groups  11 examined data elements for the purpose of identifying the most useful set of crash data to aid the agency in achieving its goal of reducing highway deaths.

On August 28, 2006, following public notice and comment, the agency's early research efforts culminated in the publication of a final rule that established Part 563. 12 Part 563 establishes uniform performance requirements for the accuracy, collection, storage, survivability, and retrievability of that set of onboard motor vehicle crash event data in passenger cars and other light vehicles equipped with EDRs.

In response to petitions for reconsideration, the agency amended Part 563 in January 2008 to make several technical changes to the regulatory text and to set a later compliance date of September 1, 2012. 13 The new compliance date helped manufacturers to avoid incurring significant redesign costs for EDR system architectures outside of the normal product cycle. Again in response to petitions for reconsideration, the agency amended Part 563 on August 5, 2011, to revise the acceleration data elements, clarify the event storage definition and make other minor technical modifications. 14 Finally, in response to further petitions for reconsideration, the agency amended Part 563 on August 9, 2012, to revise the steering input data element and delay the compliance date for the data clipping flag requirement. 15

Part 563 regulates EDR-equipped vehicles by specifying a minimum core set of required data elements and accompanying range, accuracy, and resolution requirements for those elements. The regulation also specifies requirements for vehicle manufacturers to make data retrieval tools and/or methods commercially available so that crash investigators and researchers are able to retrieve data from EDRs. Part 563 is technology-neutral, permitting the use of any available EDR technology that complies with the specified performance requirements.

Part 563 applies to passenger cars, MPVs, trucks, and buses with a GVWR of 3,855 kg (8,500 pounds) or less and an unloaded vehicle weight of 2,595 kg (5,500 pounds) or less, 16 that are voluntarily equipped with an event data recorder. It also applies to manufacturers of these vehicles, who must ensure the commercial availability of data retrieval tools. The regulation became effective on September 1, 2012. 17

Part 563 specifies minimum requirements for the types of data that EDR-equipped vehicles are required to record. In all, there are 15 data elements that must be recorded during the interval/time and at the sample rate specified in Table I of Part 563. 18 Some of the required pre-crash data are vehicle speed, engine throttle position, brake use, driver safety belt status, and air bag warning lamp status. Some of the required crash data are measured changes in forward velocity (delta-V) and air bag deployment times.

In addition, a vehicle equipped with an EDR that records any of the 28 data elements listed in Table II of Part 563, identified as “if recorded,” must capture and record information according to the minimum interval/time and at the sample rate specified in that table. 19 There are two data elements listed in Table II, identified as “if equipped.” If a vehicle carries this equipment, it must record the specified information (i.e., “frontal air bag deployment, time to nth stage, driver” and “front air bag deployment, time to nth stage, right front passenger”). 20

When retrieved, the data elements collected by the EDR pursuant to Tables I and II must be reported in accordance with the range, accuracy, and resolution requirements specified in Table III. Reported Data Element Format. 21 All three tables have been included in Appendix A to this preamble. 22

Part 563 requires that each vehicle manufacturer ensure, by licensing agreement or other means, the commercial availability of retrieval tool(s) for downloading or imaging the required EDR data. 23 The data-imaging tool must be commercially available no later than 90 days after the first sale of the vehicle for purposes other than resale. 24

To ensure that data are recorded in a crash and that the data survive the crash, EDRs must record and retain in retrievable condition certain data when the vehicles in which they are installed are tested in accordance with crash test procedures specified in Federal Motor Vehicle Safety Standard (FMVSS) Nos. 208, “Occupant crash protection,” and 214, “Side impact protection.”  25 These crash tests represent the modes of a majority of real-world crashes and severities observed. For example, several FMVSS No. 208 crash tests are performed at speeds of up to 56 km/h (35 mph), which represent the cumulative delta-V for 99 percent of frontal crashes. 26 The EDR data must be retrievable for no less than 10 days after the crash test.

Based on the agency's experience with EDRs over the past decade, as well as with recent investigations of alleged unintended acceleration and pedal entrapment, the agency has found EDR data to be an important tool that provides valuable insight. EDR data provides vehicle-recorded pre-crash information, supplementing information obtained from the driver and physical evidence from the scene.

A number of technical papers have been published on EDR accuracy in the crash test environment. Early studies focused on the full frontal barrier crash test environment where the reported EDR data was compared to instrumentation grade accelerometers mounted on the vehicle. Due to the limited availability of EDRs at that time, these studies were exclusively based on EDRs produced by General Motors. The studies reported a small amount of underestimation in the EDR delta-V reporting. 27

More recent technical papers  28 have incorporated EDRs from other vehicle manufacturers, such as Ford and Toyota. They have also looked at a variety of impact scenarios including full frontal, offset frontal, side impact, and vehicle-to-vehicle angled tests. Better correlation between EDR and crash test delta-V were reported, particularly at higher impact speeds where more serious injuries occur. Accurate reporting of seat belt use and pre-crash data was also observed. The findings from these studies are generally consistent with the agency's experience to date; however, monitoring of EDR performance will continue as more vehicle manufacturers incorporate EDRs into the fleet. Furthermore, the agency continues to emphasize that EDRs provide one valuable piece of information, along with on-site evidence, needed to reconstruct crash events.

In March 2010, the agency began to obtain data from Toyota EDRs as part of its inquiry into allegations of unintended acceleration (UA), and as follow-up to the recalls of some Toyota models for sticking and entrapped accelerator pedals. 29 The agency conducted a thorough process of validating the accuracy of Toyota's EDR data and has high confidence in the accuracy of the data recovered. 30 In the NHTSA report  31 on the analysis and findings concerning UA in vehicles manufactured by Toyota, the validation efforts were described. The validation work was extensive and ultimately NHTSA established a high level of confidence in the veracity of pre-crash data recovered from Toyota's EDRs. Those data were found to be very valuable when considered in concert with the physical facts of a given incident.

When the agency received an allegation of UA or pedal entrapment, it interviewed the complainant and obtained permission for agency investigators to inspect the vehicle and, if it was EDR-equipped, attempted to download any data on the EDR. 32 NHTSA investigators also visited the location of the alleged incident to evaluate the complaint fully. 33 Complainants might state that while coming to an intersection, the vehicle suddenly accelerated without warning, resulting in a crash, or while driving on the highway, the vehicle continued to accelerate without the complainant's having stepped on the accelerator pedal and the brakes would not stop the vehicle.

Typically, EDRs store data specific to the dynamic state of the vehicle just prior to a crash, the performance of the air bag system in a crash, and a deceleration trace. The EDRs in Toyota vehicles examined by NHTSA captured vehicle speed, accelerator pedal voltage, brake light switch status, and engine revolutions per minute (rpm) at five, one-second intervals prior to a crash. A sixth and final interval of data was recorded at algorithm enable or when the EDR sensed an impact. While non-crash impacts such as curb and pothole strikes might enable an EDR algorithm and cause it to store data, aggressive throttle application or braking (without impact) would not enable the EDR.

For further information on the agency's field inspections of recent crashes alleging one or more forms of UA and the contribution of EDR data to the agency's investigations, please see Technical Assessment of Toyota Electronic Throttle Control (ETC) Systems, February 2011. 34

Based on its experience with EDR data in the unintended acceleration studies and on the potential role of EDR data in investigations of future vehicles and technologies, the agency has been reviewing the requirements of Part 563 and assessing whether the applicability of the requirements should be expanded or the capabilities of EDRs should be increased. NHTSA plans on publishing an advance notice of proposed rulemaking in the near future to explore the potential for, and future utility of, capturing additional EDR data in light vehicles.

The agency proposes a new FMVSS, FMVSS No. 405, “Event data recorders,” which would mandate the installation of EDRs in most light vehicles manufactured on or after September 1, 2014. This proposal would also require that the vehicles meet the requirements for data elements, data format, and data capture contained in Part 563. Additionally, this proposal would require compliance with the crash test performance and survivability requirements in Part 563. This would mean that the data elements required by the regulation, with certain exceptions, must be recorded in the format specified by the regulation, exist at the completion of the crash test, and be retrievable by the methodology specified by the vehicle manufacturer. This proposal would also require manufacturers to comply with the requirements for such data retrieval tools listed in § 563.12. Finally, this proposal would require that the owner's manual in each vehicle contain the statement regarding EDRs required by § 563.11.

A key priority of this NPRM is for the agency to require EDRs in light vehicles with a GVWR of 3,855 kg or less and an unloaded vehicle weight of 2,595 kg or less, without disrupting the initiative and efforts of those manufacturers who already have voluntarily installed Part 563 compliant EDRs. Accordingly, we are not now proposing any modifications to Part 563 itself, e.g., not to any EDR data elements, data capture and format requirements, data retrieval specifications, or data survivability and crash test requirements. Likewise, we are not proposing revisions to the definitions section of Part 563.

The agency recognizes that that there have been advances in vehicle safety systems and the phase-in of new FMVSSs since the publication of the EDR final rule in 2006. 35 However, the issue of whether there should be any changes to the amount and type of information that EDRs must collect is not being considered in this rulemaking. Any significant revision to the substantive components of Part 563 is outside the scope of this NPRM.

In the 2006 EDR final rule, the agency chose not to mandate installation of EDRs at that time for purposes of encouraging the voluntary development and installation of EDRs and alleviating costs on automobile manufacturers and consumers. Although we did not mandate EDRs in 2006, we stated that it was our intention that their use continue to expand. 36

The agency explained further that the “marketplace appears to be adopting EDRs and we do not currently see a need to mandate their installation.” 37 The agency gave the following reasons for reaching this conclusion:

Thus, the agency did not deem it necessary to propose to require the installation of EDRs, but remained open to considering this in the future. We are now revisiting that decision and the reasons given to support it. The agency has tentatively reached different conclusions about the issues it discussed in its 2004 and 2006 explanations of its decision not to seek to mandate EDRs.

Our first line of reasoning for an EDR mandate is driven by a need to fully cover light vehicles required to have frontal air bags (those with a GVWR of 3,855 kg or less and an unloaded vehicle weight of 2,595 kg or less) in order to improve vehicle safety and aid the agency in investigating potential safety defects. Although the percentage of light vehicles voluntarily equipped with EDRs has steadily increased as anticipated, EDRs remain absent from about 8 percent of the current production of all light vehicles regulated by Part 563. We believe that EDRs will remain absent from these vehicles without a regulation.

While it remains true that the current and expected levels of voluntary installation of EDRs may be sufficient to generate data for assessing performance of the general vehicle population to support future rulemaking, the agency notes that many of the vehicles without EDRs are high end vehicles and that advanced safety technologies, including advanced collision avoidance technologies, are typically first introduced on high end vehicles. Thus, it is particularly important to be able to obtain EDR data generated by the crash experience of these particular vehicles so that the agency has as much information about emerging advanced technologies as possible.

In its 2006 determination, the agency did not take into consideration the significant value that EDR data from a particular vehicle model can have, as subsequently shown in the recent Toyota unintended acceleration study, in aiding the agency in assessing the performance of that vehicle model in the course of a safety defect investigation. To serve this purpose, EDR data must be available for all applicable light vehicles.

Finally, the agency does not believe that a mandate whose practical effect would be to require the installation of EDRs would impose unnecessary burdens on less expensive vehicles or hamper future improvements to EDRs given that vehicle electronics on even the least expensive vehicles are much more sophisticated today than they were in 2004 and 2006.

As noted above, we are proposing to establish a new FMVSS that requires each light vehicle having a GVWR of 3,855 kg or less and an unloaded weight of 2,495 kg or less to be equipped with an EDR capable of recording, at a minimum, the data elements specified in Table I of section 563.7. These vehicles would also need to meet the data capture and data format requirements for these elements. FMVSS No. 405 would further require that these vehicles meet the crash test performance and survivability requirements in section 563.10 with respect to the required data elements. This would have the effect of requiring that all required data elements in Part 563, except engine throttle, engine RPM, and service brake status, be retrievable for 10 days after the specified crash test. Section 563.10(c) also specifies the use of the data retrieval tool in section 563.12, and FMVSS No. 405 would make such a tool mandatory by incorporating the requirements of section 563.12. Finally, FMVSS No. 405 would require that the owner's manual in each vehicle contain the statement regarding EDRs required by section 563.11. Although by virtue of being equipped with an EDR, the vehicles affected by this rule would still need to meet all other applicable requirements of Part 563, the expanded enforcement authority available for a FMVSS, described below, would only apply to requirements listed in FMVSS No. 405.

NHTSA recognizes that it previously expressed the view that the requirements for voluntarily-installed EDRs should be placed in a regulation instead of in a standard:

We have reconsidered that position in light of subsequent experience and in the different context of this rulemaking, which seeks to mandate the installation of EDRs. Our experience in addressing unintended acceleration and pedal entrapment allegations demonstrated the value that EDR data can have for the safety of current as well as future motor vehicles. EDR data from a particular vehicle model already on the road can aid NHTSA and the model's manufacturer in their efforts to identify and address safety concerns associated with possible defects in the design or performance of those vehicles.

As to our 2006 statement about a failure to meet EDR requirements being subject to an enforcement action, we note that there is more than one form of enforcement action. Collecting penalties is one. Seeking an injunction is another. We had the latter type of enforcement action in mind when making that statement.

Placing the mandate in a FMVSS, instead of Part 563, would expand our access to the Safety Act's enforcement authority, enabling us to assess civil penalties for failure to provide an EDR or for failure to provide one that performs properly. We believe that being able to avail ourselves of this authority is necessary to ensure that all manufacturers install EDRs and that the agency has full and accurate EDR information. Such information can be vital to an agency investigation seeking to determine whether there is a safety defect in vehicles that are being driven by consumers on the road and to agency efforts to assess the performance of advanced safety technologies for possible future regulatory action. Not having an EDR or not recording such safety information has assumed even greater importance in the last several years and is far more consequential than a minor informational error, such as those involving the regulation on Vehicle Identification Numbers, for example. 40

Failure to comply with a FMVSS would violate the prohibition in 49 U.S.C. 30112 against manufacturing for sale, selling, offering for sale, introducing or delivering for introduction in interstate commerce, or importing into the United States any motor vehicle that does not comply with any applicable FMVSS. It would also subject them to the recall and remedy provisions of 49 U.S.C. 30118 and 30120. In turn, violations of that prohibition or the recall and remedy provisions would be subject the violator to civil penalties under 49 U.S.C. 30165(a)(1).

For the reasons stated above, we tentatively conclude that placing the requirements, including the EDR requirement itself, in a FMVSS is better than placing the requirements in Part 563. We acknowledge, however, that placing all of the requirements in Part 563 is an alternative to placing them in a FMVSS. We seek comment on the relative merits of placing the requirements in a FMVSS versus in Part 563. The agency requests comments on (1) which, if any, portions of Part 563 should be moved to the new FMVSS and which portions should remain in Part 563, and (2) whether some provisions should be set out in full in both or at least be set out in full in one and be incorporated by reference in the other. Should FMVSS No. 405 require that only some of the Table I elements be recorded? Should the requirements for the optional data elements listed in Table II not be incorporated into FMVSS No. 405? Would it be preferable to simply rebadge Part 563 in its entirety as FMVSS No. 405? What would be the potential problems with such an approach? How do manufacturers verify or plan to verify EDRs meet the recording requirements of Table I and II elements in Part 563?

Because EDRs, unlike other safety equipment, do not directly mitigate the risk or severity of a crash, the agency is considering how the recall and remedy provisions of the Safety Act would apply to noncompliance with the proposed FMVSS. The agency notes that 49 U.S.C. § 30118(d) authorizes the Secretary to exempt individual manufacturers from the recall and remedy provisions if the Secretary decides that a defect or noncompliance is inconsequential to motor vehicle safety. 41 The Secretary has delegated this exemption authority to NHTSA. NHTSA established 49 CFR Part 556, Exemption for Inconsequential Defect or Noncompliance, to implement the statutory provisions concerning these exemptions. The agency requests comment on what factors the agency should consider, if the proposed FMVSS is adopted, in determining whether an identified noncompliance is inconsequential. Should any noncompliance with the proposed FMVSS be subject to remedy and recall? Should recall and remedy be limited to noncompliance with certain requirements, such as noncompliance with the Table I data element requirements or the crash survivability requirements? Should noncompliance with the optional data element requirements be considered inconsequential?

The agency acknowledges that consumer privacy concerns persist regarding EDR data: Who owns it, who has access to it and under what circumstances, and what are the purposes for which it may be used. While these issues are of continued importance in the public discussion on the use of EDR technology, as an agency, we do not have the statutory authority to address many of these privacy issues because they are generally matters of State and Federal law that we do not administer. Currently, 13 states  42 have EDR laws to address vehicle owners' privacy and consumer concerns. Since 2006, more than a dozen other states have considered enacting similar legislation.

Within the limits of its authority, NHTSA has consistently sought to promote the recording of vital crash event information and to access and use that information in ways that safeguard privacy.

Many of the public's concerns about EDRs appear to arise from misconceptions about how long and under what circumstances EDRs capture and permanently store data. Concerns raised in the past about EDRs and privacy arose from the misconceptions that EDRs record data for prolonged intervals and that they record personal information. We have sought, in developing and establishing the EDR requirements, to minimize the types of data recorded and the duration of any recording. We do not require the recording of data for prolonged intervals (i.e., several minutes) or audio/visual data that the public may associate with event data recorders in other modes of transportation. We believe that our objectives can be met by using a very brief snapshot of EDR data in the time period immediately surrounding a crash.

The EDR requirements we adopted standardize EDR data recording for an extremely short duration (i.e., a few seconds immediately before and during a crash). EDRs compliant with Part 563 requirements continuously record and seconds later erase data unless and until a frontal air bag or in some cases, a side air bag deploys. If no frontal or side air bag ever deploys, no data are ever permanently captured and stored. 43 Other types of events can result in storage of data that can be overwritten by subsequent events. Data are only required to be locked and cannot be overwritten when an air bag deploys in a crash event. When recordable events do occur, EDRs only capture data for a few seconds. EDRs do not record any personal information. They do not record either location identification information or any audio or video data.

NHTSA does not have any authority to establish legally binding rules regarding the ownership or use of a vehicle's EDR data. 44 Its authority to regulate safety performance of new vehicles, prohibit commercial entities from rendering federally required safety performance features inoperative and require the recalling and remedying of noncompliant vehicles and vehicles containing a safety related defect does not enable NHTSA to control who has access to the data, specify the circumstances in which access can be obtained, or regulate how those who obtain access to the data use it.

Nevertheless, the agency strives in its own actions relating to EDR requirements and data to avoid or at least minimize any impacts on privacy. NHTSA's longstanding policy has been to treat EDR data as the property of the vehicle owner. (Note, however, that complications may arise when ownership of the vehicle or EDR is transferred after a crash.) For this reason, before we attempt to obtain EDR data in a crash investigation, our first step is always to obtain the vehicle owner's consent. Once we obtain EDR data, we take measures to protect all personally identifiable information (e.g., the vehicle identification number (VIN) may be associated with the identity of the vehicle owner), and we assure the vehicle owner that all such information will be held confidential. In handling EDR and related personal information, the agency carefully complies with applicable provisions of the Privacy Act of 1974, the Freedom of Information Act, and other statutory requirements that limit the disclosure of personal information by Federal agencies.

Part 563 does not require the EDR in a motor vehicle to record that vehicle's VIN. However, for the reasons set forth in the next paragraph, when NHTSA collects the EDR data from a vehicle, the agency also separately collects the VIN of that vehicle. The following discussion explains why it is necessary for the agency to collect VIN in connection with EDRs, how the VIN is used by the agency, and the safeguards the agency takes related to avoid the release of the VIN.

Collecting the VIN is necessary to download and process the EDR data correctly. The commercial EDR download tools require a vehicle's VIN be inputted into the program in order to link the EDR data from that vehicle with parameters that ensure proper conversion of the data to a usable format. A partial VIN will not suffice for this purpose. The full VIN of a vehicle must be inputted into current EDR extraction tools as a key to ensure proper output and to account for running changes that may occur during a particular model year, thereby rendering it infeasible to use a shortened VIN.

NHTSA takes care to protect the VINs that are collected along with EDR data. The VIN data identify the vehicle itself and do not provide name, address, or other personal identifier information regarding an individual. Further, EDR data alone cannot establish who was driving the vehicle at any given time (e.g., vehicle owner or other individuals (either with or without permission)).

Nevertheless, NHTSA has taken steps to prevent the release of any VIN because it can be used in various commercially-available programs to determine the identity of the current owner of a vehicle. As a practical matter, information contained in these records that has the potential of indirectly identifying individuals is not made public by the agency, except as specifically required by law. Further, prior to the release of information from databases containing EDR data (usually aggregated reports), the agency strips out the last six characters of the VIN (i.e., the portion that would allow identification of a specific vehicle and, potentially by indirect means, the identity of the vehicle's current owner).

In using EDR data, the agency takes the EDR-generated information that it collects and incorporates the information into large crash-related databases in order to gain a more comprehensive understanding of certain crash events. The information contained in these databases is not retrieved or retrievable by name or other individual identifier.

In light of the above, we believe that the agency has taken adequate steps to ensure individual privacy vis-á-vis its use of EDR data. Additional information on EDRs may be found on the agency's Web site where we address a range of EDR issues. The Web site is accessible at http://www.nhtsa.gov/EDR . For more background information on privacy issues related to EDRs, please see the NPRM at 69 FR 32932 (June 14, 2004), the final rule at 71 FR 50998 (August 28, 2006), and amendments to the final rule and response to petitions for reconsideration at 73 FR 2168 (January 14, 2008) and 76 FR 47478 (August 5, 2011).

We are proposing an effective date of September 1, 2014. The agency estimates that approximately 92 percent of the light vehicle fleet is equipped with Part 563 compliant EDRs. The lead time we are proposing is sufficient to ensure that manufacturers of the remaining portion of the fleet that are not equipped with an EDR can redesign the data bus architecture, air bag control module, other electronic hardware and software calibration, conduct the requisite validation testing, and ensure that a tool that can retrieve the EDR data is commercially available. The proposed lead time should address the practical concerns of small volume manufacturers and many new electric and hybrid electric manufacturers who are entering the market and who may not have been planning to install EDRs.

Mandating the installation of EDRs in light vehicles required to have frontal air bags would provide for a standardized set of EDR data elements and formats throughout most of the light vehicle fleet rather than on just those manufacturers who chose to voluntarily install EDRs. This would expand and, therefore, potentially enhance the utilization of the recorded information and lead to further improvements in the safety of current and future motor vehicles.

Although the benefits of this NPRM derive from expansion of EDR coverage, we will briefly review the general benefits related to EDRs. EDR data improve crash investigation and crash data collection quality to assist safety researchers, vehicle manufacturers, and the agency to understand vehicle crashes better and more precisely. 45 While crash investigators gather insightful information about the dynamics of crashes, some of these parameters cannot be determined (such as anti-lock braking system or electronic stability control functioning status) or cannot be as accurately measured (such as the change in velocity) by traditional post-crash investigation procedures such as visually examining and evaluating physical evidence, e.g., the crash-involved vehicles and skid marks. Further, some vehicle crash dynamics related to rollover (such as roll angle, roll rate and normal acceleration) cannot be effectively estimated by crash investigators post-crash. Data collected by the EDR can provide a direct means for measuring these needed crash parameters.

Similarly, vehicle manufacturers are able to utilize EDRs in improving vehicle designs and developing more effective vehicle safety countermeasures. Additionally, many vehicle manufacturers are developing active safety systems (or crash avoidance systems) that assist drivers in reducing the likelihood of crash occurrence. EDR recorded pre-crash data (e.g., vehicle speed and engine throttle) could be used to further improve active safety systems and reduce crash involvement rates. Additionally, the data can be used to assess whether the vehicle was operating properly at the time of the event, or to help detect undesirable operations.

Currently, Advanced Automatic Crash Notification (AACN) systems may make use of some of the Part 563 required data elements such as change in velocity, air bag deployments, and safety belt status to aid emergency response teams in assessing the severity of a crash and estimating the probability of serious injury before they arrive at the scene of the crash. 46 Overall, we believe there are many safety-related benefits that would derive from requiring light vehicles to be equipped with EDRs.

In addition to the general benefits derived from EDR installation, there are benefits specific to this NPRM to mandate EDRs. As shown in the recent Toyota unintended acceleration studies, EDR data from a particular vehicle model can have significant value in aiding the agency in assessing the performance of that vehicle model and in determining the need for, or conducting, a safety defect investigation that may lead to a recall of the vehicle model for repair or replacement of problem parts or systems. To serve this purpose for all light vehicles required to have frontal air bags, EDR data must be available for those vehicles.

EDR data can also aid in the improvement in existing safety standards and the development of new ones. Many of the vehicles anticipated to continue to lack EDRs, absent a mandate, are high end vehicles that have advanced safety technologies, including advanced collision avoidance technologies. Such technologies are typically first introduced on high end vehicles. Thus, it is particularly important to be able to obtain EDR data generated by the crash experience of these particular vehicles.

The cost for an EDR is estimated to be $20 per vehicle. The estimated total incremental costs associated with this proposal would be $26.4 million (2010 dollars), which is measured from a baseline of 91.6 percent EDR installation to 100 percent installation, assuming the sale of 16.5 million light vehicles per year with a GVWR up to 4,536 kg. This cost reflects the need for technology improvements, as well as assembly costs, compliance costs, and paperwork maintenance costs for those 1.32 million vehicles with a GVWR of 3,855 kg or less that do not have EDRs. Technological improvements account for the majority of these costs.

NHTSA has considered the potential impacts of this proposed rule under Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” and the Department of Transportation's regulatory policies and procedures. This document was reviewed by the Office of Management and Budget under those orders. This document has been determined to be significant under the Department's regulatory policies and procedures. While the potential cost impacts of the proposed rule are far below the level that would make this an economically significant rulemaking, the rulemaking addresses a topic of substantial public interest.

The agency has prepared a separate document addressing the benefits and costs for the proposed rule. A copy is being placed in the docket.

As discussed in that document and in the preceding sections of this NPRM, the crash data that would be collected by EDRs under the proposed rule would be extremely valuable for the advancement of vehicle safety by enhancing and facilitating crash investigations, the evaluation of safety countermeasures, advanced restraint and safety countermeasure research and development, certain safety defect investigations, and AACN. The improvements in vehicle safety will occur indirectly from the collection of crash data by EDRs. Since the establishment of Part 563 in 2006, the agency has observed an increasing percentage of light vehicles utilizing EDR technology, and researchers, vehicle manufacturers, AACN and emergency medical service (EMS) providers, government agencies, and other members of the safety community are using the EDR data in ways that contribute to overall vehicle safety. EDR data can also have significant value in aiding the agency in assessing the performance of particular vehicle models in determining the need for, or conducting, a safety defect investigation that may lead to a recall of the vehicle for repair or replacement of problem parts or systems, as was made evident in the recent UA investigations involving Toyota vehicles, discussed earlier in this NPRM.

We estimate that about 92 percent of new light vehicles are already equipped with EDRs. As discussed earlier, vehicle manufacturers have provided EDRs in their vehicles by adding EDR capability to their vehicles' air bag control systems. The costs of EDRs have been minimized, because they involve the capture into memory of data that is already being processed by the vehicle, and not the much higher costs of sensing much of that data in the first place.

The costs of the proposed rule would be the incremental costs for vehicles currently not equipped with EDRs to comply with the proposed EDR mandate and Part 563's requirements. We estimate the total annual costs of the proposed rule to be $26.4 million. While the potential costs include technology costs, paperwork maintenance costs, 47 and compliance costs, the paperwork maintenance and compliance costs are estimated to be negligible. The proposal would not require additional sensors to be installed in vehicles, and the major technology cost would result from a need to upgrade memory chips and hardware for housing the recorded data. The total cost for the estimated 1.2 million vehicles that do not have an EDR to comply with the proposed mandate and Part 563 requirements is estimated to be $26.4 million (2010 dollars). A complete discussion of how NHTSA arrived at these costs may be found in the separate document on benefits and costs.

NHTSA has considered the impacts of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). We certify that the proposed amendment would not have a significant economic impact on a substantial number of small entities.

The following is the agency's statement providing the factual basis for the certification (5 U.S.C. 605(b)). If adopted, the proposal would directly affect motor vehicle manufacturers, second stage or final manufacturers, and alterers. SIC code number 3711, Motor Vehicles and Passenger Car Bodies, prescribes a small business size standard of 1,000 or fewer employees. SIC code No. 3714, Motor Vehicle Part and Accessories, prescribes a small business size standard of 750 or fewer employees.

Nine motor vehicle manufacturers affected by this proposal would qualify as a small business, as identified in the Preliminary Regulatory Evaluation. 48 Most of the intermediate and final stage manufacturers of vehicles built in two or more stages and alterers have 1,000 or fewer employees. However, these small businesses adhere to original equipment manufacturers' instructions in manufacturing modified and altered vehicles. Based on our knowledge, original equipment manufacturers do not permit a final stage manufacturer or alterer to modify or alter sophisticated devices such as air bags or EDRs. Therefore, multistage manufacturers and alterers would be able to rely on the certification and information provided by the original equipment manufacturer. Accordingly, there would be no significant impact on small businesses, small organizations, or small governmental units by these amendments. For these reasons, the agency has not prepared a preliminary regulatory flexibility analysis.

NHTSA has examined today's proposal pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999). Because multiple States have enacted laws related to EDRs and may thus have a particular interest in this rulemaking, NHTSA has initiated efforts to consult with associations representing officials of those States  49 to obtain their views of the impact, if any, of this proposed rulemaking.

NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 50 It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance. Thus, to the extent that aspects of EDR performance would be addressed by a safety standard, States would be expressly preempted by section 30103(b)(1) from adopting or maintaining any non-identical statute or regulation addressing those aspects of performance. With respect to this proposal, such aspects would include State EDR technical requirements requiring that EDRs record specific data elements, and/or requiring EDRs to meet specific technical performance or survivability requirements. Further, it is our view that any State laws or regulations that imposed, for the types of EDRs addressed by this proposal, additional disclosure requirements on vehicle manufacturers or dealers would likewise create a conflict and therefore be preempted. The disclosure requirements in Part 563, which we are proposing to incorporate into FMVSS No. 405, require a statement in the owner's manual to make the operator aware of the presence, function, and capabilities of the EDR. We believe that inconsistent or additional State disclosure requirements would frustrate the purposes of our regulation by potentially creating confusion or information overload, thereby reducing the benefit of the required statement.

In promulgating Part 563, the agency stated that it was our intent to provide one consistent set of requirements, including a specified statement in the owner's manual, for vehicles equipped with EDRs. In proposing to establish FMVSS No. 405, we continue to believe that this approach will enhance the quality of EDR data by standardizing the content, format, and accuracy of such data, thereby increasing its comparability and overall usefulness. We further believe that the standardized data will be of greater benefit for safety equipment analysis and crash reconstruction.

This proposed rule does not address certain other issues generally within the realm of State law, such as whether the vehicle owner owns the EDR data, how EDR data can be used/discovered in civil litigation, how EDR data may be used in criminal proceedings, whether EDR data may be obtained by the police without a warrant, whether EDR data may be developed into a driver-monitoring tool, and the nature and extent that private parties (including insurance companies, car rental companies, and automobile manufacturers) will have or may contract for access to EDR data.

The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.”  51 Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

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

To this end, the agency has examined the nature (e.g., the language and structure of the regulatory text) and objectives of today's rule and finds that this rule, like many NHTSA rules, prescribes only a minimum safety standard. The agency does not anticipate any State common law tort judgments concerning EDRs that could create any actual conflict. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.

This proposed rule would not have any retroactive effect. Under section 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the state's use. General principles of preemption law would apply, however, to displace any conflicting state law or regulations. If the proposed rule were made final, there would be no requirement for submission of a petition for reconsideration or other administrative proceedings before parties could file suit in court.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. This proposal would mandate the installation of EDR devices in most light vehicles manufactured after September 1, 2014, and would require such vehicles to meet the EDR requirements contained in Part 563.

In compliance with the PRA, we announce that NHTSA is seeking comment on a new information collection. 53

Agency: National Highway Traffic Safety Administration (NHTSA).

Title: Event Data Recorders.

Type of Request: New collection.

OMB Control Number: Not assigned.

Form Number: The collection of this information uses no standard form.

Requested Expiration Date of Approval: Three years from the date of approval.

Summary of the Collection of Information:

NHTSA is proposing to create a new FMVSS in Part 571 that would require vehicle manufacturers to install EDRs in most light vehicles manufactured on or after September 1, 2014. The EDRs in those vehicles would be required by the new standard to meet the data elements, data capture and format, data retrieval, and data crash survivability requirements of Part 563, the existing regulation setting forth requirements for voluntarily-installed EDRs. This proposal would also require manufacturers to comply with the Part 563 requirements for ensuring the availability of EDR data retrieval tools and the requirement that the owner's manual in each vehicle contain a specified statement regarding EDRs.

The agency believes that requiring all light vehicles to be equipped with EDRs would help improve vehicle safety for consumers, while imposing relatively few costs on the automobile industry. EDR data are used to improve crash investigation and crash data collection quality to assist safety researchers, vehicle manufacturers, and the agency to understand vehicle crashes better and more precisely. Similarly, vehicle manufacturers are able to utilize EDRs in improving vehicle designs and developing more effective vehicle safety countermeasures, and EDR data may be used by AACN systems to aid emergency response teams in assessing the severity of a crash and estimating the probability of serious injury.

Additionally, the agency's experience in handling unintended acceleration and pedal entrapment allegations over the past year has demonstrated that if a vehicle is equipped with an EDR, the data from that EDR can improve the ability of both the agency and the vehicle's manufacturer to identify and address safety concerns associated with possible defects in the design or performance of the vehicle. Moreover, this proposal to mandate EDRs across the entire light vehicle fleet would contribute to advancements in the designs, particularly with respect to occupant restraints and other safety systems, of future vehicles.

The respondents are manufacturers of passenger cars, multipurpose passenger vehicles, trucks, and buses having a GVWR of 3,855 kg (8,500 pounds) or less and an unloaded vehicle weight of 2,495 kg (5,500 pounds). The agency estimates that there are approximately 30 such manufacturers.

There are no annual reporting or recordkeeping burdens associated with this proposed rule. Vehicle manufacturers are not required to retain or report information gathered by EDRs because the devices themselves continuously monitor vehicle systems and determine when to record, retain, and/or overwrite information. The information is collected automatically by electronic means. Data are only required to be locked and cannot be overwritten when an air bag deploys in a crash event. When recordable events do occur, EDRs only capture data for a few seconds.

The costs to respondents are the costs of designing and equipping each covered vehicle with a compliant EDR. These costs include technology improvements, assembly costs, and paperwork maintenance costs. 54 Technology improvements account for the majority of these costs. Because the costs of EDRs under the PRA are those associated with the capture of data that is already being processed by the vehicle, the additional burden hours necessary to equip vehicles with EDR capability are minimal.

In determining the costs of this proposed rule under the PRA, we estimate that there are approximately 15.71 million applicable vehicles produced annually, 14.39 million of which are already voluntarily equipped with EDRs. The cost to install an EDR meeting the requirements of this proposed rule is $20 per vehicle if a vehicle does not have an EDR. The costs of this proposed rule under the PRA include the costs of installing compliant EDRs on all applicable vehicles, even those that are currently equipped with EDRs. Accordingly, the annual total costs of this proposed rule under the PRA would be $314.20 million.

We emphasize that the regulatory costs of the proposed rule would only be the incremental costs for the 1.32 million vehicles not currently equipped with EDRs to be equipped with an EDR meeting Part 563's requirements. As discussed above, we estimate the total annual regulatory costs of the proposed rule to be $26.4 million.

Comments are invited on:

• Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility.

• Whether the Department's estimate for the burden of the information collection is accurate.

• Ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.

Please submit any comments, identified by the docket number in the heading of this document, by any of the methods described in the ADDRESSES section of this document. Comments are due by February 11, 2013.

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

There are several consensus standards related to EDRs, most notably those standards published by SAE and IEEE. NHTSA carefully considered the consensus standards applicable to EDR data elements in establishing Part 563. Consensus standards for recording time/intervals, data sample rates, data retrieval, data reliability, data range, accuracy and precision, and EDR crash survivability were evaluated by NHTSA and adopted when practicable. This particular rulemaking, however, does not involve such matters. It is limited to establishing a mandate for certain light vehicles to be equipped with an EDR.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). In 2010 dollars, this threshold is $136 million. 55 Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.

If adopted, this proposed rule would not impose any unfunded mandates under the Unfunded Mandates Reform Act of 1995. This proposed rule would not result in costs in excess of $136 million (2010 dollars) annually to either State, local, or tribal governments, in the aggregate, or to the private sector. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA.

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

The policy statement in section 1 of Executive Order 13609 provides, in part:

NHTSA requests public comment on whether (a) the “regulatory approaches taken by foreign governments” concerning the subject matter of this rulemaking and (b) the above policy statement have any implications for this rulemaking.

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

Your comments must be written and in English. To ensure that your comments are 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. (49 CFR 553.21) NHTSA 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 one copy (two copies if submitting by mail or hand delivery) of your comments, including the attachments, to the docket following the instructions given above under ADDRESSES. Please note, if you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions. 56

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 Office of the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT . In addition, you should submit a copy (two copies if submitting by mail or hand delivery), from which you have deleted the claimed confidential business information, to the docket by one of the methods 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 NHTSA's confidential business information regulation (49 CFR Part 512).

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

You may read the comments received at the address given above under COMMENTS. The hours of the docket are indicated above in the same location. You may also see the comments on the Internet, identified by the docket number at the heading of this notice, at http://www.regulations.gov.

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

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://www.dot.gov/privacy.html.

In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as follows:

The butterfish mortality cap on the longfin squid fishery was implemented on January 1, 2011, as part of Amendment 10 to the Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan (FMP) (75 FR 11441, March 11, 2010) as a means of reducing fishing mortality to the butterfish stock. Butterfish discards in the longfin squid fishery account for the largest source of butterfish fishing mortality. The cap currently limits butterfish catch (both landings and discards) on directed longfin squid trips. The mortality cap accounts for fishery behavior in which most butterfish caught on a longfin squid trip is discarded and only a small amount of butterfish is landed, which has been the case since 2002. However, in response to new information that suggests increased butterfish abundance, the Council has recommended a much higher butterfish quota for the 2013 fishing year, and the increased quota would allow for a directed butterfish fishery for the first time in recent years.

The butterfish mortality cap is currently calculated by extrapolating observed butterfish catch (landings and discards) on longfin squid trips with an observer aboard over all unobserved longfin squid trips. All trips that land at least 2,501 lb (1.13 mt) of longfin squid are considered in the calculations for the butterfish mortality cap. With directed butterfish fishing, an observed trip could land a very large amount of butterfish and just enough longfin squid to still be classified as a butterfish mortality cap trip. This means that the cap estimation would include a number of trips that are not truly targeting longfin squid. The most effective way to address this without reclassifying what constitutes a longfin squid trip (i.e., changing the 2,501-lb (1.13-mt) threshold) is to account for only discards of butterfish when determining how much butterfish on that trip should count against the mortality cap. To do this, the observed rate of butterfish catch (observed butterfish catch/kept all on observed squid trips) would be changed to the observed rate of butterfish discards (observed butterfish discards/kept all on observed trips), where “kept all” is the retained catch of all species on the trip.

Thus, Framework Adjustment 7 proposes to change the butterfish mortality cap on the longfin squid fishery from a catch cap to a discard cap. If the Council specifies a butterfish quota that does not accommodate a directed fishery in future fishing years, the butterfish mortality cap can be reverted to a catch cap as part of the specifications process.

This action would also reduce the butterfish mortality cap for the 2013 fishing year by 13 percent (from 4,500 mt to 3,915 mt) to exclude butterfish landings that were previously included in the butterfish mortality cap allocation. This reduction is based on year-end butterfish mortality cap analyses for the 2011 fishing year, in which 13 percent of butterfish catch in the cap was retained and 87 percent of butterfish catch in the cap was discarded. Although the total butterfish mortality allocation will decrease, the adjusted cap level is expected to maintain overall butterfish mortality in the longfin squid fishery.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Mackerel, Squid, and Butterfish FMP, other provision of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

As outlined in the preamble to this proposed rule, Framework Adjustment 7 proposes to change the butterfish mortality cap on the longfin squid fishery from a catch cap to a discard cap, and adjusts the 2013 cap allocation to account for this change. The Council conducted a comprehensive evaluation of the potential socioeconomic impacts of Framework Adjustment 7 in the Framework Document (see ADDRESSES ), and determined that this rule will not have a significant economic impact on a substantial number of number entities. While Framework Adjustment 7 adjusts the butterfish mortality cap on the longfin squid fishery by changing what portion of butterfish mortality counts towards the cap, and adjusts the butterfish mortality cap level for the 2013 fishing year to account for the change in the cap accounting, the action does not establish annual catch limits for butterfish or change the annual allocation for any of the MSB species. This action simply means that the cap no longer limits butterfish landings on longfin squid trips.

Assuming that a directed butterfish fishery is allowed, that there is a market for butterfish, and that vessels targeting squid will continue to do so as they have in past years (i.e. the nature of a directed longfin squid trip does not change), Framework Adjustment 7 will have no impact on which vessels catch butterfish, or what and what the overall profit from butterfish will be for these vessels. Under the existing butterfish mortality cap (i.e. a butterfish mortality cap that takes into account both landings and discards), a vessel targeting longfin squid that catches butterfish incidentally will land butterfish if there is some profit to be made from the butterfish landings. The same would occur under Framework Adjustment 7, where only the butterfish mortality cap only takes into account discards. If butterfish landings occur while a vessel is targeting longfin squid, the vessel will likely land that butterfish if there is some profit to be made from the butterfish landings.

The economic impacts of the total level of both butterfish landings and discards for the 2013 fishing year is unchanged by Framework Adjustment 7, and has already been analyzed in the 2013 MSB specifications. Further, the body of permit holders that has the potential to directly target butterfish is unchanged by Framework Adjustment 7 alone. Under both the status quo butterfish mortality cap and the discard only mortality cap, the total level of butterfish landings will be limited by the previously analyzed butterfish quota. The total allowed level of butterfish discards in the longfin squid fishery is capped through the butterfish mortality cap on the longfin squid fishery. Finally, the effects of a potential closure of the longfin squid fishery based on exceeding the butterfish mortality cap is analyzed in MSB Amendment 10, and the effects of the specific cap level set for 2013 is analyzed in 2013 MSB specifications. Thus, there are no economic impacts to evaluate. This action is only designed to maintain the effective control of butterfish mortality established in Amendment 10 and the annual specifications for the butterfish mortality cap.

The Council-conducted analyses identified 375 unique fishing entities with limited access butterfish/longfin squid permits, all of which were determined to be small entities. However, given the minor change implemented by the proposed measure, there are neither expected direct economic or disproportionate impacts to either small or large regulated entities, given the aforementioned adjustment to the butterfish mortality cap on the longfin squid fishery process proposed in Framework Adjustment 7. As a result, an initial regulatory flexibility analysis is not required and none has been prepared. RFA analysis will be conducted, as appropriate, for subsequent actions that establish catch limits for butterfish.

The Magnuson-Stevens Act requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This notice announces that proposed Amendment 41 to the FMP is available for public review and comment.

The king and Tanner crab fisheries in the exclusive economic zone of the BSAI are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act. Amendments 18 and 19 amended the FMP to include the CR Program. Regulations implementing these amendments were published on March 2, 2005 (70 FR 10174), and are located at 50 CFR part 680.

The CR Program is a catch share program for nine BSAI crab fisheries that allocates those resources among harvesters, processors, and coastal communities. Under the CR Program, NMFS issued quota share (QS) to eligible harvesters based on participation during a set of qualifying years in one or more of the nine CR Program fisheries. QS is an exclusive, revocable privilege allowing the holder to harvest a specific percentage of the annual total allowable catch (TAC) in a CR Program fishery.

A QS holder's annual allocation, called IFQ, is expressed in pounds and is based on the amount of QS held in relation to the total QS pool for that fishery. NMFS issues IFQ in three classes: Class A IFQ, Class B IFQ, and Class C IFQ. Three percent of IFQ is issued as Class C IFQ for captains and crew. Ninety percent of the remaining IFQ is issued as Class A IFQ and 10 percent is issued as Class B IFQ.

NMFS issued processor quota share (PQS) to qualified individuals and entities based on processing activities in CR Program fisheries during a period of qualifying years. PQS is an exclusive, revocable privilege to receive deliveries of a fixed percentage of the annual TAC from a CR Program fishery. A PQS holder's annual allocation is called IPQ. NMFS issues IPQ at a one-to-one correlation between the amount of IPQ and Class A IFQ issued for a given CR Program fishery. Class A IFQ must be delivered to a processor holding a matching amount of IPQ; Class C IFQ and Class B IFQ may be delivered to any registered crab receiver.

The CR Program established regional delivery requirements to preserve the historic geographic distribution of deliveries in the crab fisheries. NMFS assigned a regional designation to QS and PQS for seven of the nine CR Program fisheries. The regional delivery requirements are structured so that crab harvested with regionally designated IFQ must be delivered to a processor with matching regionally designated IPQ and processed in the designated region. These regional delivery requirements are intended to ensure that coastal communities historically active as crab processing ports continue to receive economic benefits from crab deliveries and to encourage the development of shorebased processing capacity in specific isolated communities.

The Council adopted Amendment 41 to the FMP at its December 2010 meeting. Amendment 41 allows IFQ holders, IPQ holders, and communities to request and receive from NMFS an exemption to regional delivery requirements. Amendment 41 would apply to QS and PQS that has a regional designation for the North Region or South Region. NMFS assigned a North Region designation or a South Region designation to the QS and PQS in six CR Program fisheries: Bristol Bay red king crab, Bering Sea snow crab, Eastern Aleutian Islands golden king crab, Western Aleutian Islands red king crab, Saint Matthew Island blue king crab, and Pribilof Islands red and blue king crab. The North Region is north of 54°20′ N. latitude. The South Region is south of 54°20′ N. latitude.

NMFS also assigned a West Region designation to a portion of the Western Aleutian Islands golden king crab QS and PQS; the remaining QS and PQS in that fishery is undesignated and may be delivered without regional limitation. Eastern Bering Sea Tanner crab QS and PQS, and Western Bering Sea Tanner crab fishery QS and PQS, do not have a regional designation. Amendment 41 would not apply to QS and PQS issues for these fisheries.

In recommending Amendment 41, the Council recognized that weather conditions or other natural or man-made circumstances can hinder harvesting activities and restrict access to processing facilities in the North or South Region. Natural or man-made catastrophes could result in lost revenue to harvesters, processors, and communities. Safety risks increase when harvesters attempt to meet regional delivery requirements in inclement weather (e.g., icing conditions) and other potentially unsafe situations. Unforeseen delays in delivering crab could result in deadloss (crab that die before being processed). Harvesters may avoid or delay the harvest of regionally designated IFQ, thereby increasing the potential for unharvested crab or crab harvested later in the fishing season than would have been otherwise required for a given TAC level. Such changes in fishing behavior could result in unused IPQ, increased processing cost, loss of market share, and loss of revenue to remote communities dependent on revenues from crab deliveries and processing.

The Council recognized that the purpose of prohibiting holders of regionally designated Class A IFQ and IPQ from delivering and processing crab outside of the designated region ensures that each region retains the economic benefits from deliveries within the region. Therefore, under Amendment 41, deliveries of regionally designated Class A IFQ outside of the region would need to be negotiated among IFQ holders, IPQ holders, and representatives of affected communities. The Council also recognized that any exemption must include requirements for IFQ holders and IPQ holders to make efforts to avoid the need for an exemption and to limit the amount of IFQ and IPQ subject to the exemption. The Council recommendation supports the existing regional delivery requirements while establishing a process to mitigate disruptions in a CR Program fishery that would restrict the ability of participants to meet the delivery requirements.

The Council also recognized the potential for insurmountable administrative difficulties if NMFS specified the conditions for granting an exemption and then determined whether those conditions existed in a particular situation. Therefore, the Council recommended a system of civil contracts between harvesters, processors, and community representatives as the means of establishing the exemption from the regional delivery requirements.

Under Amendment 41, the parties—Class A IFQ holders, IPQ holders, and affected communities—would develop private contractual arrangements that specify when, and under what terms, they could request and receive an exemption from NMFS. The contract terms would not be established in the FMP or in regulation. The parties would enter into two private contractual arrangements—a framework agreement and an exemption contract—before the specified IFQ and IPQ would be exempt from the regional delivery requirements. These contracts would govern the roles and responsibilities of the parties to the contract and would establish each party's specific obligations. The goal is that, through the framework agreement process, the parties would plan for adverse conditions and would agree to take steps to reduce the need for an exemption. Then, in the event that the mitigation was unsuccessful in averting the need for an exemption, the parties would agree to an exemption contract and jointly apply to NMFS for an exemption from the regional delivery requirement. If any party to a framework agreement or exemption contract believes that any other party did not comply with their contractual obligation, that party could seek redress as a private civil matter.

Amendment 41 does not prescribe specific conditions or terms of agreement for the framework agreement or exemption contract. Section 2.4.2 of the analysis provides background about the range of private arrangements that the Council considered and that the parties might put in the framework agreement and the exemption contract. In negotiating the framework agreement, the Council expects that the parties would consider mechanisms and operating practices that would limit the need to seek an exemption from the regional delivery requirements. The Council anticipates that the framework agreement would define the steps that the parties would take prior to the crab fishing season to avoid seeking an exemption during the fishery. A framework agreement could include an agreement among IFQ holders, whereby they aggregate a certain percentage of their IFQ to address inseason factors that could otherwise prevent compliance with regional delivery requirements. For example, the framework agreement could prioritize the harvest of North Region Class A IFQ while setting aside a portion of South Region Class A IFQ until the North Region Class A IFQ has been harvested and delivered to matching North Region IPQ. The Council anticipates that the framework agreement would also address the circumstances that would trigger requesting an exemption. If those circumstances occurred, the Council anticipates that the framework agreement would describe the steps that the parties would take to mitigate the adverse effects of the exemption on the affected community. The framework agreement might include steps to compensate the community that was losing the processing, the economic activity from the processing, and the tax revenues from the processing.

The CR Program also limits the amount of PQS and IPQ that may be owned or used by an individual. Under Amendment 41, NMFS would suspend the requirement that any IPQ used at a facility through a custom processing arrangement accrue against the IPQ use cap of the owners of that facility for all Class A IFQ and IPQ included in the exemption. IPQ holders will continue to be subject to the IPQ use cap for other crab processing that does not occur through an exemption from the regional delivery requirements.

NMFS is soliciting public comments on proposed Amendment 41 through the end of the comment period (see DATES ). NMFS intends to publish in the Federal Register and seek public comment on a proposed rule that would implement Amendment 41, following NMFS' evaluation of the proposed rule under the Magnuson-Stevens Act. All comments received by the end of the comment period on Amendment 41, whether specifically directed to the FMP amendment or the proposed rule, will be considered in the approval/disapproval decision on Amendment 41. Comments received after that date will not be considered in the approval/disapproval decision on Amendment 41. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the last day of the comment period.