Tap any paragraph to write a margin note. Your notes collect in the Desk below the text and file under cases with @. The side-by-side margin rail opens on a larger screen.

§
Marginalia
Code · REGISTER · 2008-01-14 · PROPOSED RULES · Agriculture Agriculture Department See Forest Service Architectural Architectural and Transportation Barriers Compliance Board PROPOSED RULES Emergency Transportable Housing Advisory Committee, 2208-2 · Unknown

Unknown. Final rule

45,003 words·~205 min read·/register/2008/01/14/08-91

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2008-01-14.xml --- 73 9 Monday, January 14, 2008 Contents Agriculture Agriculture Department See Forest Service Architectural Architectural and Transportation Barriers Compliance Board PROPOSED RULES Emergency Transportable Housing Advisory Committee, 2208-2209 08-92 Passenger Vessel Emergency Alarms Advisory Committee, 2209 08-103 Centers Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 2256-2257 E8-425 Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel Correction, 2257 E8-480 Centers Centers for Medicare & Medicaid Services NOTICES Privacy Act; systems of records, 2257-2263 08-72 Children Children and Families Administration NOTICES Office of Head Start; Request for Nominations for the Secretary's Advisory Committee on Re-Designation of Head Start Grantees 2263-2264 08-88 Coast Guard Coast Guard RULES Landowner Defenses to Liability Under the Oil Pollution Act of 1990:
Standards and Practices for Conducting All Appropriate Inquiries, 2146-2156 E8-329 Commerce Commerce Department See Foreign-Trade Zones Board See International Trade Administration See National Oceanic and Atmospheric Administration Defense Defense Department See Navy Department NOTICES Meetings: Women in the Services Advisory Committee, 2226-2227 E8-419 Delaware Delaware River Basin Commission NOTICES Notice of Methodology for the Delaware River and Bay Integrated List Water Quality Assessment, 2228 E8-453 Education Education Department RULES Measuring Educational Gain in the National Reporting System for Adult Education, 2306-2324 08-69 NOTICES Arts in Education Model Development and Dissemination Grant Program, 2404-2410 E8-449 Jacob K.
Javits Gifted and Talented Students Education Program, 2228-2230 E8-450 Office of Special Education and Rehabilitative Services; List of Correspondence, 2230-2232 E8-448 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Approval and Promulgation of Air Quality Implementation Plans: Pennsylvania, 2163-2166 E8-268 Pennsylvania; correction, 2162-2163 E8-277 Virginia, 2159-2162 E8-265 West Virginia, 2156-2159 E8-263 PROPOSED RULES Approval and Promulgation of Air Quality Implementation Plans:
Virginia, 2210-2211 E8-290 West Virginia, 2209-2210 E8-287 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2244-2245 E8-442 Amendment to General Routine Uses, 2245-2247 E8-445 Beaches Environmental Assessment and Coastal Health Act, 2247-2252 E8-443 Executive Executive Office of the President See National Drug Control Policy Office FAA Federal Aviation Administration PROPOSED RULES Airworthiness Directives: Airbus Model A310 Series Airplanes and A300-600 Series Airplanes, 2197-2200 E8-380 Airbus Model A318, A319, A320, and A321 Airplanes, 2200-2204 E8-383 Boeing Model 727-200 Series Airplanes, 2204-2206 E8-384 Boeing Model 757 Airplanes, 2195-2197 E8-376 Boeing Model 767-200, -300, and -400ER Series Airplanes, 2190-2192 E8-378 McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, and MD-10-10F Airplanes, 2206-2208 E8-385 Saab Model SAAB Fairchild SF340A (SAAB/SF340A) and SAAB 340B Airplanes, 2192-2195 E8-375 FCC Federal Communications Commission PROPOSED RULES Radio Broadcasting Services:
Linden, Tennessee, 2211 E8-458 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-459 E8-460 2252-2255 E8-461 FDIC Federal Deposit Insurance Corporation RULES Deposit Insurance Requirements After Certain Conversions: Definition of Corporate Reorganization; Optional Conversions (Oakar Transactions), etc., 2143-2146 E8-294 PROPOSED RULES Processing of Deposit Accounts in the Event of an Insured Depository Institution Failure and Large-Bank Deposit Insurance Determination Modernization, 2364-2401 E8-273 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 2268 E8-466 Emergency Declaration: Oklahoma, 2268-2269 E8-468 Major Disaster Declaration: Oklahoma, 2269 E8-467 Oregon, E8-464 2269 E8-465 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2232-2233 E8-402 Applications for Abandonment of Sales Services: Distrigas of Massachusetts Corp., 2234 E8-399 Combined Notice of Filings, 2234-2238 E8-408 E8-409 Iroquois Gas Transmission System, L.P.;
Notice of Availability for the Environmental Assessment for the Proposed Iroquois 08/09 Expansion Project, 2238-2239 E8-397 Meetings: Commission Staff Attendance at Midwest ISO Meetings, 2241-2243 E8-403 North Baja Pipeline, LLC; Notice of Intent to Prepare an Environmental Assessment for the Proposed Yuma Lateral Project, 2240-2241 E8-395 Notice of Filing: City of Vernon, California, 2243 E8-400 Westar Energy, Inc., 2243 E8-401 PetroLogistics Natural Gas Storage, LLC; Notice of Availability of the Environmental Assessment for the Proposed PetroLogistics Gas Storage Project, 2239-2240 E8-396 Puget Sound Energy, Inc., et. al.;
Notice of Application to Transfer Natural Gas Act Section 3 Authorization and Presidental Permit, 2233-2234 E8-398 Technical Conference and Request for a Statement of Interest: Alaska Natural Gas Transportation Project, 2244 E8-404 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 2255-2256 E8-431 Notice of Proposals to Engage in Permissible Nonbanking Activities or to Acquire Companies that are Engaged in Permissible Nonbanking Activities, 2256 E8-430 Federal Transit Federal Transit Administration RULES Charter Service, 2326-2361 08-86 Food Food and Drug Administration NOTICES Transition to the Federal Dockets Management System, 2264-2265 E8-428 MISSING FOR:
Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES Spartanburg County, SC; Application for Temporary/Interim Manufacturing Authority, Kittel Supplier USA, Inc. (Automotive Roof/Luggage Racks), 2213 E8-457 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2212-2213 E8-368 Meetings: Ravalli County Resource Advisory Committee, 2213 08-89 GSA General Services Administration RULES Federal Management Regulation: Delegated Leasing Authority, Real Property Policies Update, 2166-2167 E8-438 Real Property Policies Update, 2167-2168 E8-439 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health See Substance Abuse and Mental Health Services Administration Health Health Resources and Services Administration NOTICES Meetings:
Blood Stem Cell Transplantation Advisory Council, 2265 E8-366 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency See U.S. Citizenship and Immigration Services PROPOSED RULES Nondiscrimination in Matters Pertaining to Faith-Based Organizations, 2187-2190 E8-463 Housing Housing and Urban Development Department NOTICES Funding Awards for the Brownfields Economic Development Initiative
(BEDI)Fiscal Year 2006, 2270-2271 E8-462 Interior Interior Department See Land Management Bureau NOTICES Request for Nominations for the Invasive Species Advisory Committee, 2271-2272 E8-391 International International Trade Administration NOTICES Hand Trucks and Certain Parts Thereof from the People's Republic of China, 2214-2222 E8-456 Sodium Nitrite from the People's Republic of China, 2213-2214 E8-455 Stainless Steel Sheet and Strip in Coils from Mexico, 2222-2223 E8-454 International International Trade Commission NOTICES Investigation: Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine, 2273-2274 E8-416 Certain Computer Products, Computer Components and Products Containing Same, 2275 E8-412 Certain Ground Fault Interrupters and Products Containing Same, 2274-2275 E8-411 Certain Semiconductor Chips with Minimized Chip Package Size and Products Containing Same, 2276-2277 E8-415 Certain Short Wavelength Semiconductor Lasers and Products Containing Same, 2277 E8-410 Certain Silicon Microphone Packages and Products Containing the Same, 2277-2278 E8-413 Sodium Nitrite from China and Germany, 2278-2279 E8-414 Justice Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-386 2279-2280 E8-387 Land Land Management Bureau NOTICES Notice of Intent to Prepare an Amendment to the Mimbres Resource Management Plan and Associated Environmental Assessment, Las Cruces District, New Mexico, 2272-2273 07-6282 Maritime Maritime Administration NOTICES Availability for Draft Environmental Impact Statement: Update of the Kahului Harbor, Maui County, HI Master Plan, 2301-2302 E8-436 Requested Administrative Waiver of the Coastwise Trade Laws, 2302 E8-437 Merit Merit Systems Protection Board RULES Practices and Procedures, 2143 E8-447 National Drug National Drug Control Policy Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2280-2281 E8-451 E8-452 National Highway National Highway Traffic Safety Administration RULES Event Data Recorders, 2168-2184 E8-407 NIH National Institutes of Health NOTICES Meetings: National Heart, Lung, and Blood Institute, 2266 08-83 National Institute of Environmental Health Sciences, 08-81 2266-2267 08-82 National Institute of Mental Health, 2267 08-84 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Northeastern United States fisheries— Northeast multispecies, 2184-2186 08-91 NOTICES Endangered Species, 2223 E8-495 Fisheries of the South Atlantic and Gulf of Mexico: Southeastern Data, Assessment, and Review (SEDAR); king mackerel., 2223-2224 E8-371 Florida Keys National Marine Sanctuary Management Plan; Availability, 2224 08-79 Meetings: Mid-Atlantic Fishery Management Council, E8-373 2225-2226 E8-422 Pacific Fishery Management Council, 2226 E8-372 Navy Navy Department NOTICES Privacy Act; systems of records, 2227-2228 E8-420 Nuclear Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2281 E8-417 AREVA NP Inc.; Notice of Receipt of Application for Design Certification of the U.S. EPR, 2286-2287 E8-423 Implementation of Certificate of Compliance Amendments to Previously Loaded Spent Fuel Storage Casks, 2281-2284 E8-424 Issuance of License Amendment No. 15: University of Illinois Nuclear Research Laboratory Triga Research Reactor, 2284-2286 E8-418 Meetings; Sunshine Act, 2286 08-106 National Office of National Drug Control Policy See National Drug Control Policy Office Personnel Personnel Management Office NOTICES Reports and Guidance Documents; Availability, Etc.: 2006 Nonforeign Area Cost-of-Living Allowance Survey Report; Alaska and Washington, DC; correction, 2303 Z7-25297 Postal Postal Regulatory Commission NOTICES Facility Tours, 2287 E8-394 Postal Postal Service RULES Undeliverable Items, 2156 E8-392 Railroad Railroad Retirement Board NOTICES Privacy Act; computer matching programs, 2287-2288 E8-426 SEC Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-351 E8-352 2288-2289 E8-353 E8-354 Consolidated Tape Association: Immediate Effectiveness of the Tenth Charges Amendment to the Second Restatement of the Consolidated Tape Association Plan, etc., 2289-2291 E8-348 Order of Suspension of Trading: AAmpro Group, Inc., 2291 08-104 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 2291-2294 E8-349 E8-390 Boston Stock Exchange, Inc., 2294-2295 E8-388 Chicago Board Options Exchange, Inc., 2295-2296 E8-389 NASDAQ Stock Market LLC, 2296-2297 E8-393 Philadelphia Stock Exchange, Inc., 2297-2299 E8-350 SBA Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2299-2300 08-90 State State Department NOTICES Culturally Significant Objects Imported for Exhibition: Determinations: Rembrandt: Three Faces of the Master, 2300-2301 E8-433 Determinations: Vatican Splendors, 2301 E8-432 Notice of Availability of the Final Environmental Impact Statement: Proposed TransCanada Keystone Pipeline Project, 2300 E8-434 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2267-2268 E8-427 Transportation Transportation Department See Federal Aviation Administration See Federal Transit Administration See Maritime Administration See National Highway Traffic Safety Administration MISSING FOR: U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2270 E8-446 Separate Parts In This Issue Part II Education Department, 2306-2324 08-69 Part III Transportation Department, Federal Transit Administration, 2326-2361 08-86 Part IV Federal Deposit Insurance Corporation, 2364-2401 E8-273 Part V Education Department, 2404-2410 E8-449 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 9 Monday, January 14, 2008 Rules and Regulations MERIT SYSTEMS PROTECTION BOARD 5 CFR Part 1201 Practices and Procedures AGENCY: Merit Systems Protection Board. ACTION: Final rule. SUMMARY: The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure in this part to reflect the relocation of its Northeastern Regional Office. On January 22, 2008, the Board relocates its Northeastern Regional Office from the U.S. Customhouse, Room 501, Second and Chestnut Streets, Philadelphia, PA 19106-2987, to 1601 Market Street, Suite 1700, Philadelphia, PA 19103. Appendix II of this part is amended to show the new address. The Northeastern Office telephone numbers remain unchanged. DATES: *Effective Date:* January 22, 2008. FOR FURTHER INFORMATION CONTACT: William D. Spencer, Clerk of the Board,
(202)653-7200. The Board is publishing this rule as a final rule pursuant to 5 U.S.C. 1204(h). List of Subjects in 5 CFR Part 1201 Administrative practice and procedure, Civil rights, Government employees. Accordingly, the Board amends 5 CFR part 1201 as follows: PART 1201—PRACTICES AND PROCEDURES 1. The authority citation for part 1201 continues to read as follows: Authority: 5 U.S.C. 1204 and 7701, unless otherwise noted. Appendix II to Part 1201 [Amended] 2. Amend Appendix II to 5 CFR part 1201 in item 3. by removing “U.S. Customhouse, Room 501, Second and Chestnut Streets, Philadelphia, PA 19106-2987,” and adding, in its place “1601 Market Street, Suite 1700, Philadelphia, PA 19103,”. William Spencer, Clerk of the Board. [FR Doc. E8-447 Filed 1-11-08; 8:45 am] BILLING CODE 7400-01-P FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 303, 308, and 309 RIN 3064-AD25 Deposit Insurance Requirements After Certain Conversions; Definition of “Corporate Reorganization;” Optional Conversions (“Oakar Transactions”); Additional Grounds for Disapproval of Changes in Control; and Disclosure of Certain Supervisory Information AGENCY: Federal Deposit Insurance Corporation (“FDIC”). ACTION: Interim rule and request for comment. SUMMARY: The FDIC is amending certain regulations in order to conform them to certain Federal statutes recently amended by the Financial Services Regulatory Relief Act of 2006, the Federal Deposit Insurance Reform Act of 2005, and the Federal Deposit Insurance Reform Conforming Amendments Act of 2005. First, the FDIC is amending its deposit insurance regulations to clarify that a deposit insurance application is required for each new bank that results from the conversion of certain Federal savings associations into multiple banks. Second, the FDIC is amending its merger regulations to define the term “corporate reorganization” to mean a merger that involves solely an insured depository institution and one or more of its affiliates. Third, the FDIC is amending its merger regulations to remove any reference to “Optional Conversions” (sometimes referred to as “Oakar Transactions”). Fourth, the FDIC is adding, as an additional grounds for disapproval of a change in control notice, unfavorable future prospects of the institution to be acquired. Finally, the FDIC is authorizing the disclosure of examination reports and other confidential supervisory information to certain additional agencies and entities. DATES: The interim rule is effective January 14, 2008. Comments on the rule must be received by March 14, 2008. ADDRESSES: You may submit comments on the interim rule, by any of the following methods: • *Agency Web Site: http://www.fdic.gov/regulations/laws/federal/propose.html.* Follow instructions for submitting comments on the Agency Web Site. • *E-mail: Comments@FDIC.gov* . Include RIN 3064-AD25 on the subject line of the message. • *Mail:* Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. • *Hand Delivery:* Comments may be hand delivered to the guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7 a.m. and 5 p.m. *Instructions:* All comments received will be posted generally without change to *http://www.fdic.gov/regulations/laws/federal/propose.html* , including any personal information provided. Comments may be inspected at the FDIC Public Information Center, Room E-1022, 3502 North Fairfax Drive, Arlington, VA 22226, between 9 a.m. and 5 p.m. on business days. FOR FURTHER INFORMATION CONTACT: Brett A. McCallister, Review Examiner
(816)234-8099 x4223, in the Division of Supervision and Consumer Protection; or Julie E. Paris, Senior Attorney,
(202)898-3821, Richard Bogue, Counsel,
(202)898-3726, or Robert C. Fick, Counsel,
(202)898-8962, in the Legal Division. SUPPLEMENTARY INFORMATION: I. Background. On October 13, 2006, the President signed into law the Financial Services Regulatory Relief Act of 2006 (“FSRRA”). 1 The stated purpose of FSRRA is to reduce regulatory burden and improve productivity for financial institutions. Several provisions of FSRRA amend statutes that the FDIC has implemented through its Rules and Regulations (“Rules”). 2 As a result, the FDIC is revising certain of its Rules to conform them to the statutes as amended by FSRRA. In addition, Congress enacted the Federal Deposit Insurance Reform Act of 2005 (“Reform Act”) 3 and the Federal Deposit Insurance Reform Conforming Amendments Act of 2005 (“Amendments Act”) 4 which consolidated the two former deposit insurance funds into a single deposit insurance fund. As a result, the FDIC is revising its regulations to reflect this change. 1 Public Law No. 109-351, 12 STAT. 1966 (Oct. 13, 2006). 2 Chapter III of Title 12 of the Code of Federal Regulations. 3 Pub. L. 109-171, 120 STAT. 9 (Feb. 8, 2006). 4 Pub. L. 109-173, 119 STAT. 3601 (Feb. 15, 2006). II. Regulatory Amendments A. Deposit Insurance Requirements After Certain Conversions Section 5(i)(5) of the Home Owners' Loan Act (“HOLA”) 5 generally authorizes any Federal savings association that was chartered and in operation before November 12, 1999 and that had branches in one or more states, to convert into one or more national or state banks, each of which may encompass one or more of the existing branches. Section 608(a) of FSRRA amended section 5(i)(5) of the HOLA to generally require that if such a conversion results in more than one national or state bank, each resulting bank must obtain deposit insurance from the FDIC pursuant to section 5(a) of the Federal Deposit Insurance Act (“FDI Act”). 6 5 12 U.S.C. 1464(i)(5). 6 12 U.S.C. 1815(a). Subpart B of Part 303 of the FDIC's Rules sets forth the procedures for applying for deposit insurance. Section 303.20 describes the scope of this subpart to include applications for deposit insurance for, among other institutions, proposed depository institutions. Since it is not clear that this subpart applies to each bank that results from the conversion of certain Federal savings associations into multiple banks under section 5(i)(5) of the HOLA, the FDIC is amending section 303.20 to expressly confirm the applicability of subpart B of part 303 to such resulting banks. B. Definition of Corporate Reorganization Section 606 made two changes to the Bank Merger Act 7 with respect to mergers that solely involve an insured depository institution and one or more of its affiliates (“Affiliate Mergers”). First, for Affiliate Mergers, section 606 amended section 18(c)(4) of the FDI Act 8 to eliminate the requirement for the responsible Federal banking agency to request competitive factors reports from either the other Federal banking agencies or the Attorney General of the United States. 9 Prior to FSRRA the responsible Federal banking agency had to request competitive factors reports for Affiliate Mergers. Second, section 606 revised section 18(c)(6) of the FDI Act 10 to eliminate the post-approval waiting period for Affiliate Mergers. Prior to FSRRA the applicant in an Affiliate Merger had to wait up to thirty days after obtaining the agency's approval before it could consummate the transaction. 7 12 U.S.C. 1828(c). 8 12 U.S.C. 1828(c)(4). 9 Notwithstanding this change, the responsible Federal banking agency retains the ability to request competitive factors reports if the circumstances warrant. 10 12 U.S.C. 1828(c)(6). The FDIC's regulations at 12 CFR 303.61(b) provides a definition of “corporate reorganization” that identifies a class of mergers that generally do not raise any competitive concerns and, therefore, do not require the same level of competitive analysis as other mergers subject to the Bank Merger Act. As a result, such mergers are less burdensome on applicants. Generally, 12 CFR 303.61(b) defines the term to include
(i)mergers between an insured institution and its subsidiary or its holding company and
(ii)mergers between institutions and entities that were “commonly-owned.” Institutions are “commonly-owned” only if more than 50% of the voting stock of each was owned by the same entity. The changes made by Section 606 of the FSRRA, however, indicate that there are no competitive concerns for a class of mergers that is broader than the class identified by the FDIC's regulation as corporate reorganizations. Specifically, FSRRA indicates that there are no competitive concerns for mergers that solely involve an insured depository institution and one or more affiliates. While the term “corporate reorganization” is only used in subpart D as one of several illustrative examples of the types of mergers covered by the Bank Merger Act, the definition could cause confusion as to how it relates to Affiliate Mergers. As a result, the FDIC is amending the definition of “corporate reorganization” in order to conform it to the changes made by FSRRA and to avoid any confusion about the need for competitive analyses and post-approval waiting periods. Accordingly, the FDIC is amending 12 CFR 303.61(b) to define “corporate reorganization” as a merger that involves solely an insured depository institution and one or more of its affiliates. C. Optional Conversions Before it was repealed, the former section 5(d)(3) of the FDI Act 11 generally authorized a member of one insurance fund to merge with a member of the other fund without changing the funds that insured the deposits of the two institutions. This type of merger was referred to as an “Optional Conversion” in both section 5(d)(3) of the FDI Act and in section 303.63(d) of the FDIC's Rules; it was also commonly known as an “Oakar Transaction.” Section 303.63(d) of the FDIC's Rules required the applicant in an Optional Conversion to identify the merger as an “Optional Conversion” in its application. 11 12 U.S.C. 1815(d)(3) (repealed 2006). On March 31, 2006, pursuant to the Reform Act and the Amendments Act, the former Savings Association Insurance Fund (“SAIF”) and the former Bank Insurance Fund (“BIF”) were consolidated into a single fund, the Deposit Insurance Fund. In addition, the Amendments Act repealed section 5(d)(3) of the FDI Act effective with the merger of the two funds. 12 Since the Reform Act consolidated the two funds into one, and since the Amendments Act repealed section 5(d)(3) of the FDI Act, Optional Conversions are no longer possible. As a result, the FDIC is amending section 303.63 to remove paragraph
(d)*Optional conversions.* The removed paragraph formerly read as follows: 12 *See* section 8(a)(4) of the Amendments Act, Pub. L. 109-173 (2006).
(d)*Optional conversions.* If the proposed merger transaction is an optional conversion, the merger application shall include a statement that the proposed merger transaction is a transaction covered by section 5(d)(3) of the FDI Act (12 U.S.C. 1815(d)(3)). D. Additional Grounds for Disapproval of a Change in Control Section 705 of FSRRA amended section 7(j)(7) of the FDI Act 13 to add an additional ground for the disapproval of a proposed acquisition of control of a bank. The additional ground for disapproval of a proposed acquisition is if the future prospects of the institution might jeopardize the financial stability of the bank or prejudice the interests of the depositors of the bank. 13 12 U.S.C. 1817(j)(7). Section 308.111 of the FDIC's Rules lists the statutory grounds for disapproval of a proposed acquisition of control of an insured state nonmember bank. Since FSRRA added unfavorable future prospects of the institution as an additional ground for disapproval of a proposed acquisition, the FDIC is amending section 308.111(c) to reflect this new ground. E. Disclosure of Certain Supervisory Information Section 707 of FSRRA amended section 7(a)(2) of the FDI Act 14 by adding a new subsection
(C)that generally expands the authority of the Federal banking agencies to furnish examination reports and other confidential supervisory information to
(1)any other Federal and State agencies with supervisory or regulatory authority over the depository institution or entity,
(2)officers, directors and receivers of such depository institution or entity, and
(3)any other person that the Federal banking agency determines to be appropriate. 14 12 U.S.C. 1817(a)(2). The FDIC's Rules authorizing the disclosure of confidential information are found in Part 309 of its Rules. Paragraph (b)(3) of section 309.6 entitled “Disclosure of exempt records,” authorizes the disclosure of exempt records to Federal financial institution supervisory agencies and certain other agencies. Since section 707 of FSRRA authorized additional disclosures of certain supervisory information, the FDIC is amending section 309.6(b)(3) to add those additional disclosures to the disclosures previously authorized. III. Regulatory Analysis and Procedure as to Interim Rule A. Solicitation of Comments on Use of Plain Language Section 722 of the Gramm-Leach-Bliley Act 15 requires the FDIC to use “plain language” in all proposed and final rules published after January 1, 2000. The FDIC invites comments on whether the interim rule is clearly stated and effectively organized, and how the FDIC might make the text easier to understand. 15 12 U.S.C. 4809. B. Administrative Procedure Act The interim rule takes effect upon publication in the **Federal Register** . The interim rule conforms the FDIC's regulations to several statutory provisions that were amended by FSRRA on October 13, 2006 and by the Reform Act and the Amendments Act effective on March 31, 2006. The statutory amendments made by FSRRA which took effect upon enactment on October 13, 2006 and the statutory amendments made by the Reform Act and the Amendments Act which took effect on March 31, 2006 continue in effect. The amendments to the FDIC's regulations made by the interim rule generally reflect the language contained in the amended statutes without interpretation. The amendments made by the interim rule effect no substantive changes beyond those already effected by Federal statute. For the foregoing reasons, solicitation of public comment prior to the effectiveness of these regulatory amendments is unnecessary. Accordingly, pursuant to 5 U.S.C. 553(b), the FDIC finds that good cause exists for making the rule effective upon this publication without first seeking public comment. However, the FDIC nonetheless invites public comment on the interim rule and will amend the rule if appropriate after reviewing any public comments received. C. Regulatory Flexibility Act Pursuant to section 603(a) of the Regulatory Flexibility Act (“RFA”) 16 a regulatory flexibility analysis is only required when an agency is required to publish a notice of proposed rulemaking for a proposed rule. Since the regulatory amendments made by the interim rule are effective upon publication in the **Federal Register** , and since no notice of proposed rulemaking is required to be published, no regulatory flexibility analysis is required. 16 5 U.S.C. 603(a). D. Paperwork Reduction Act No new collections of information pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ) are contained in the interim rule. List of Subjects 12 CFR Part 303 Administrative practice and procedure, Bank deposit insurance, Banks, banking, Reporting and recordkeeping requirements, Savings associations. 12 CFR Part 308 Administrative practice and procedure, Bank deposit insurance, Banks, banking, Claims, Crime, Equal access to justice, Fraud, Investigations, Lawyers, Penalties. 12 CFR Part 309 Banks, banking, Credit, Freedom of information, Privacy. Authority and Issuance For the reasons set forth in the preamble, parts 303, 308, and 309 of Chapter III of the title 12 of the Code of Federal Regulations are amended as follows: PART 303—FILING PROCEDURES 1. The authority citation for part 303 is revised to read as follows: Authority: 12 U.S.C. 378, 1464, 1813, 1815, 1817, 1818, 1819 (Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1, 1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207; 15 U.S.C. 1601-1607. 2. Add the following sentence at the end of § 303.20 to read as follows: § 303.20 Scope. * * * Each bank that results from the conversion of a Federal savings association into multiple banks pursuant to section 5(i)(5) of the Home Owners' Loan Act, 12 U.S.C. 1464(i)(5), is treated as a proposed depository institution or a de novo institution, as appropriate, for purposes of this subpart. 3. Amend § 303.61 by revising paragraph
(b)to read as follows: § 303.61 Definitions.
(b)*Corporate reorganization* means a merger transaction that involves solely an insured depository institution and one or more of its affiliates. § 303.63 [Amended] 4. In § 303.63, remove paragraph (d). PART 308—RULES OF PRACTICE AND PROCEDURE 5. The authority citation for part 308 continues to read as follows: Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831m(g)(4), 1831o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717; 15 U.S.C. 78(h) and (i), 78o-4(c), 780-5, 6805(b)(1); 28 U.S.C. 2461 note, 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Sec. 3100(s) Pub. L. 104-134, 110 Stat. 1321-358. 6. Amend § 308.111 by revising paragraph
(c)to read as follows: § 308.111 Grounds for disapproval.
(c)Either the financial condition of any acquiring person or the future prospects of the institution might jeopardize the financial stability of the bank or prejudice the interest of the depositors of the bank. PART 309—DISCLOSURE OF INFORMATION 7. The authority citation for part 309 continues to read as follows: Authority: 5 U.S.C. 552; 12 U.S.C. 1819(a) “Seventh” and “Tenth.” 8. Amend § 309.6 by adding the following new sentence at the end of paragraph (b)(3) to read as follows: § 309.6 Disclosure of exempt records.
(b)* * *
(3)* * * Finally, the Director, or designee, may in his or her discretion and for good cause, disclose reports of examination or other confidential supervisory information concerning any depository institution or other entity examined by the Corporation under authority of Federal law to: any other Federal or State agency or authority with supervisory or regulatory authority over the depository institution or other entity; any officer, director, or receiver of such depository institution or entity; and any other person that the Corporation determines to be appropriate. By Order of the Board of Directors. Dated at Washington, DC, the 19th day of December, 2007. Federal Deposit Insurance Corporation. Valerie J. Best, Assistant Executive Secretary. [FR Doc. E8-294 Filed 1-11-08; 8:45 am] BILLING CODE 6714-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 137 [Docket No. USCG-2006-25708] RIN 1625-AB09 Landowner Defenses to Liability Under the Oil Pollution Act of 1990: Standards and Practices for Conducting All Appropriate Inquiries AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is establishing standards and practices concerning the “all appropriate inquiries” element of a defense to liability of an owner or operator of a facility that is the source of a discharge or substantial threat of discharge of oil into the navigable waters or adjoining shorelines or the exclusive economic zone. To be entitled to the defense, those persons must show, among other elements not addressed in this rulemaking, that, before acquiring the real property on which the facility is located, they had made all appropriate inquiries into its previous ownership and uses to determine the presence or likely presence of oil. This rule is consistent with a final rule on this subject published by the Environmental Protection Agency. DATES: This final rule is effective February 13, 2008. ADDRESSES: Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2006-25708 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at *www.regulations.gov* . FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call Benjamin White, National Pollution Funds Center, Coast Guard, telephone 202-493-6863. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory History On June 12, 2007, we published a notice of proposed rulemaking
(NPRM)entitled “Landowner Defenses to Liability Under the Oil Pollution Act of 1990: Standards and Practices for Conducting All Appropriate Inquiries” in the **Federal Register** (72 FR 32232). We received no comments on the proposed rule. No public meeting was requested and none was held. The Coast Guard is, therefore, adopting the NPRM as published and without change as a final rule. Background and Purpose In general, under the Oil Pollution Act of 1990 (33 U.S.C. 2701, *et seq.* ) (OPA 90), an owner or operator of a facility that is the source of a discharge, or a substantial threat of discharge, of oil into the navigable waters or adjoining shorelines or the exclusive economic zone is liable for damages and removal costs resulting from the discharge or threat. See 33 U.S.C. 2702(a). Under OPA 90, that person is known as a “responsible party.” See 33 U.S.C. 2701(32). The Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108-293) (the 2004 Act) amended OPA 90, at 33 U.S.C. 2703(d)(4), by creating an “innocent landowner” defense to liability for those persons who could demonstrate, among other requirements, that before acquiring the real property on which the facility is located, they did not know, and had no reason to know that oil that is the subject of the discharge or substantial threat of discharge was located on, in, or at the facility. See 33 U.S.C. 2703(d)(2)(A). This is done by establishing that, before it acquired the real property on which the facility is located, it carried out “all appropriate inquiries” into its previous ownership and uses according to “generally accepted good commercial and customary standards and practices.” See 33 U.S.C. 2703(d)(4)(A)(i). The Coast Guard is required to establish, by regulation, the standards and practices for carrying out all appropriate inquiries (33 U.S.C. 2703(d)(4)(B)), which is the subject of this rulemaking. This rulemaking applies to persons planning to acquire real property on which a facility, as defined under 33 U.S.C. 2701(9), is located who choose to take steps necessary to protect themselves from liability should unknown oil that is the subject of a discharge or substantial threat of discharge be found at the facility after they acquire it. We call these persons “landowners” or “owners” in this preamble. Should prospective landowners opt for this protection, they may find that they have already complied with this rule if they have complied with ASTM International
(ASTM)E 1527-05, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The industry standard ASTM E 1527-05, is consistent with this rule and is compliant with the statutory criteria for all appropriate inquiries. Persons conducting all appropriate inquiries may use the procedures included in the ASTM E 1527-05 standard to comply with this rule. For more information on the ASTM standard, see the “ASTM Standard E 1527-05” section in this preamble. Note that this rule addresses only one of several elements that must be complied with in order to avail oneself of this protection. The element addressed in this rule is called the “all-appropriate-inquiries” element found in 33 U.S.C. 2703(d)(4). Scope of the Rule Congress included in the 2004 Act a list of criteria that the Coast Guard must address in their regulations for establishing standards and practices for conducting all appropriate inquiries. The criteria may be found in 33 U.S.C. 2703(d)(4)(C). This rulemaking is limited only to providing those standards and practices relative to the “all appropriate inquiries” element. This rulemaking does not address the other requirements in 33 U.S.C. 2703 which also must be met to qualify for the innocent-landowner defense. The rule would not apply to real property purchased by a non-governmental entity or non-commercial entity for residential use or other similar uses where an inspection and a title search of the facility and the real property on which the facility is located reveal no basis for further investigation. In those cases, 33 U.S.C. 2703(d)(4)(E) states that the inspection and title search satisfy the requirements for all appropriate inquiries. Also, the rule would not affect the existing OPA 90 liability protections for State and local governments that acquire a facility involuntarily in their functions as sovereigns under 33 U.S.C. 2701(26)(B)(i) and 33 U.S.C. 2703(d)(2)(B). Involuntary acquisition of facilities by State and local governments do not fall under the all-appropriate-inquiries provision of 33 U.S.C. 2703(d)(4). Consultation With Other Agencies Under 33 U.S.C. 2703(d)(4)(B), we are required to consult with the Environmental Protection Agency
(EPA)to develop regulations establishing standards and practices for conducting “all appropriate inquiries.” On November 1, 2005, EPA published a final rule in the **Federal Register** (70 FR 66070) establishing standards and practices for conducting all appropriate inquiries as required by sections 101(35)(B)(ii) and
(iii)of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. 9601, et seq.) found at 42 U.S.C. 9601(35)(B)(ii) and (iii). CERCLA's liability provision applies to releases or threatened releases of “hazardous substances”, which is defined to exclude most forms of oil. These regulations are located in 40 CFR part 312. EPA used a negotiated rulemaking process to develop their standards and practices for conducting all appropriate inquiries under CERCLA. EPA's Negotiated Rulemaking Committee included interested parties from environmental interest groups; the environmental justice community; federal, state, tribal, and local governments; real estate developers, bankers and lenders; and, environmental professionals. The all-appropriate-inquiries provisions of OPA 90 and CERCLA are similar in many respects, but not identical. The CERCLA provision has a broader scope than the OPA provision. It addresses certain liability defense provisions that are unique to CERCLA, involving persons who may not be affected by this rule, such as contiguous property owners and bona fide prospective purchasers. While differences between OPA 90 and CERCLA have required certain differences between the Coast Guard's final rule and EPA's final rule, we have coordinated with EPA to ensure that the two rules have been rendered as consistent as possible within statutory constraints. Maintaining consistency between the two rules helps standardize practices within the Federal Government. ASTM Standard E 1527-05 ASTM International
(ASTM)E 1527-05, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” is the current voluntary industry standard that defines good commercial and customary practice in the United States for conducting an environmental site assessment of a parcel of commercial real estate with respect to oil under OPA 90 and hazardous substances under CERCLA. The 2004 Act, at 33 U.S.C. 2703 (d)(4)(D)(ii), refers to ASTM E 1527-97, which is no longer available from ASTM and has been replaced by ASTM E 1527-05. Both the EPA and the Coast Guard agree that the new ASTM E 1527-05 is the active industry standard and is consistent with Congressional intent. Persons conducting all appropriate inquiries are permitted to use the procedures included in the ASTM E 1527-05 standard to comply with this rule, but use of the ASTM is not mandatory. Regulatory Evaluation Executive Order 12866 This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. A final Regulatory Evaluation follows: Compliance with this rule is required only for those persons engaging in a commercial real estate transaction who choose to take steps necessary to protect themselves from liability should unknown oil that is the subject of a discharge or substantial threat of discharge be found at the facility after they acquire it. The following analysis of the economic impacts associated with this rule relies heavily upon the data collected and the assumptions made in the Environmental Impact Analysis of EPA's final rule, “Economic Impact Analysis for the Final All Appropriate Inquiries Regulation,” Docket ID No. SFUND-2004-0001 found at *http://www.regulations.gov/fdmspublic/component/main* or at EPA Docket Center, EPA West Building, Room B102, 1301 Constitution Avenue, NW., Washington, DC. EPA surveyed all publicly available literature on environmental assessments of sites to determine what standard industry was customarily using. These assessments correspond to the all appropriate inquiries provision being addressed in this rulemaking and are commonly known as Phase I environmental site assessments (Phase I ESAs). EPA determined that the 2000 edition of ASTM E 1527 (i.e., ASTM E 1527-00) would be their regulatory baseline. This baseline represented the “no action” scenario to which all regulatory alternatives were compared and their economic impacts were measured. ASTM E 1527-00 would have been applied by industry absent EPA's regulation, because this voluntary industry standard represented “generally accepted good commercial and customary practices.” This assumption was confirmed by the members of EPA's Negotiated Rulemaking Committee (See the “Consultation with Other Agencies” section of this preamble.). To further validate their assumption, EPA received no public comments on this aspect of its Economic Impact Analysis. In addition, ASTM International states that ASTM E 1527-97 (the edition referred to in the 2004 Act) is no longer available because, when a new version of a standard is released, previous versions of the standard are no longer the active industry standard. The Coast Guard, after independently contacting ASTM International, concurs that the ASTM E 1527-00 standard more accurately reflects the current market conditions than the E 1527-97 standard referenced in OPA 90 as the acceptable interim standard (33 U.S.C. 2703(d)(4)(D)(ii)). The Coast Guard therefore uses the ASTM E 1527-00 standard as its regulatory baseline for its analysis of the economic impacts associated with this rule. Historically, Phase I ESAs have been used towards providing liability protection to individuals under CERCLA. A recent survey conducted by Environmental Data Resources, Inc.
(EDR)indicates that approximately 55 percent of all Phase I ESAs are driven exclusively by a need for the landowner to qualify for protection from CERCLA liability. The remaining 45 percent are driven by a desire to assess other business environmental risk concerns (i.e., asbestos, lead-based paint, oil, etc.). As previously discussed in the “Consultation with Other Agencies” section of this preamble, this rule is consistent with EPA's final rule. The scope of EPA's rulemaking however is much larger than this rule. As such, the economic impacts of this rule are a subset of the impacts estimated by EPA's rulemaking. This reduction in economic impact results primarily from the lower number of Phase I ESAs expected to be conducted annually under this rule compared to EPA's final rule. As was the case with EPA's rulemaking, this rule is expected to result in the following economic impacts:
(1)A reduced burden for the conduct of interviews in those cases where the facility and the real property on which the facility is located is abandoned. The new requirement requires only that neighboring property owners and occupants be interviewed and not the current owners and occupants of the abandoned property. This burden would range from no change to a decrease of 0.5 hour per Phase I ESA depending on the type and size of the facility and the real property on which the facility is located.
(2)An increased burden in those cases where past owners or occupants of the facility and the real property on which the facility is located need to be interviewed. This would involve the additional effort required to locate and interview past owners and occupants. This increased burden would range from 1 hour to 2 hours per Phase I ESA depending on the type and size of the facility and the real property on which the facility is located.
(3)An increased burden associated with documenting recorded environmental cleanup liens. This increased burden would involve additional time spent in preparing the Phase I ESA report. This increased burden would range from an additional 0.5 hour to 1 hour per Phase I ESA depending on the size and type of the facility and the real property on which the facility is located.
(4)An increased burden for documenting the reasons for the price and fair market value of a facility and the real property on which the facility is located in those cases where the purchase price paid is significantly below its fair market value. This increased burden would involve interviews with local government officials and increased time spent in preparing the Phase I ESA report. This increased burden would reflect an additional 0.5 hour per Phase I ESA for all sizes and types of facilities and the real properties on which the facilities are located.
(5)An increased burden for recording information about the degree of obviousness of the presence or likely presence of oil at a facility and the real property on which the facility is located. This increased burden would involve additional time spent in preparing the Phase I Environmental report. This increased burden would range from 0.5 hour to 1 hour per Phase I ESA depending on the type and size of the facility and the real property on which the facility is located. Using a weighted labor rate of $51.20/hour applied to the activities (as outlined above) required as a result of their regulation (as they vary from those required in their regulatory baseline), EPA determined that there would be an incremental cost ranging from $52 to $58 per Phase I ESA (the low end estimate assumes that 15 percent of properties are abandoned, while the high end estimate assumes that 28 percent of properties are abandoned). Our analysis simplifies this range as an average incremental cost of $55 per Phase I ESA. A. Analysis Calculations and Results Using data from EPA's final rule and extrapolated for the period from 2007 to 2016, there would be an average of 332,038 Phase I ESAs conducted annually. As previously mentioned, the incremental cost of conducting a Phase I ESA to comply with EPA's rulemaking above and beyond what was required under ASTM E 1527-00 as calculated by EPA's rulemaking would be approximately $55 per ESA. B. Estimated Annual Number of OPA 90-Related Phase I ESAs This analysis is severely limited by the lack of data available which would allow the number of Phase I ESAs conducted applicable to this rule to be segregated from the total population of Phase I ESAs conducted. In order to put an upward bound on the costs associated with this rule, this analysis first describes the absolute upper bound scenario (i.e., that all commercial real estate transactions not exclusively conducted for CERCLA liability protection requiring a Phase I ESA would be impacted by this rule). Next the Coast Guard developed a more likely scenario that takes into account that Phase I ESAs for certain commercial real estate transactions are outside the scope of this rule. We acknowledge that, of all of the commercial real estate transactions that occur annually, a likely small percentage would involve— 1. A facility and the real property on which the facility is located where a discharge or substantial threat of discharge of oil may impact the navigable waters or exclusive economic zone of the United States; and 2. A Phase I ESA that was conducted for establishment of the innocent landowner liability protection provision under OPA 90 and not to assess environmental risk concerns not related to oil (e.g., lead-based paint contamination, asbestos, CERCLA hazardous substances, etc.). C. Upper Bound Cost Scenario The estimated incremental cost of this scenario, where all future Phase I ESAs not conducted specifically for CERCLA liability protection (i.e., 45 percent as per the results of EDR's survey mentioned above) are impacted by this rule, would be approximately $8.2 million per year. Cost calculation 1—Estimated Annual Number of Coast Guard related Phase I ESAs 332,038 Phase I ESAs × 0.45 = 149,417 Phase I ESAs Estimated Annual Cost of Coast Guard related Phase I ESAs 149,417 Phase I ESAs × $55/ESA = $8,217,935 per year. D. Most Likely Cost Scenario To more accurately reflect the scope of this rule, certain commercial real estate transactions involving a Phase I ESA from EPA's analysis would have to be removed from this analysis. Those include transactions where a discharge or substantial threat of discharge of oil from a facility and the real property on which the facility is located would not have the possibility of impacting the navigable waters or exclusive economic zone of the United States and transactions which are conducted for substances other than oil. Absent the data to make more than an approximation, we assumed that five percent of the total number of Phase I ESAs may realistically reflect the number of Phase I ESAs within the scope of this rule. Under this assumption, the estimated cost associated with this rule would be significantly reduced. The estimated incremental cost under this scenario is approximately $913,110 per year. Cost Calculation 2—Estimated Annual Number of Coast Guard related Phase I ESAs. 332,038 Phase I ESAs × 0.05 = 16,602 Phase I ESAs. Estimated Annual Cost of Coast Guard related Phase I ESAs: 16,602 Phase I ESAs × $55/ESA = $913,110 per year. ASTM International has since updated their ASTM E 1527 standard. Their new standard is ASTM E 1527-05. Both EPA and Coast Guard recognize that this new standard is consistent with their rulemakings on the subject. See the **Federal Register** (70 FR 66081). Because the new standard is consistent with the EPA final rule, which went into effect on November 1, 2006, and provides documentation for both hazardous substances and oil, it is likely that all prudent prospective commercial landowners will be using the more rigorous ASTM standard for their real estate transactions well before our rule becomes effective. Thus, the possible economic impact attributed to this rule might be reduced to a negligible value. The Coast Guard further notes that there have been no instances to date where a responsible party has attempted to use the interim innocent-landowner defense to liability provision under OPA 90. EPA qualitatively assessed the benefits for their final rule. Of these benefits, only one is applicable to our rule due to our much smaller regulatory scope, namely the increased level of certainty with regard to OPA 90 liability provided to prospective owners of facilities and the real properties on which they are located with potential oil discharges. The Coast Guard, as was the case with EPA's analysis, is not able to quantify, with any significant level of confidence, the exact proportion of benefits associated with the rule. For these reasons, the costs and benefits can not be directly compared. However, because complying with this rule is required only for those persons who choose to take steps necessary to protect themselves from liability should unknown oil that is the subject of a discharge or substantial threat of discharge be found at the facility after they acquire it, it can be assumed that persons would only do so if the potential benefits to them associated with this protection from liability outweigh their costs of compliance. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. As previously stated in the regulatory evaluation section above, compliance with this rule is only required for those entities, regardless of their operations, involved in a real estate transaction who choose to take steps necessary to protect themselves from liability should unknown oil that is the subject of a discharge or substantial threat of discharge be found at the facility after they acquire it. Therefore, it assumed that entities across all industries, as defined by the North American Industry Classification System (NAICS), could potentially be affected. The Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act of 1996 require Federal agencies to measure the regulatory impacts of the rule to determine whether there will be a significant economic impact on a substantial number of small entities. Entities, however, may operate at multiple physical locations. For example, most family-owned restaurants operate at a single location, while chain restaurants have multiple locations. Thus, the annual number of transactions per entity, and therefore the demand for Phase I ESAs, is a function of the number of establishments an entity owns. According to 2001 U.S. Census data, the distribution of establishments by entity size of the regulated community is as follows: Less than 100 employees: 81% 100 to 499 employees: 5% 500 to 1,499 employees: 2% 1,500 employees or more: 12% According to EPA's Office of Policy, Economics, and Innovations and EPA's National Center for Environmental Economics, it is a common practice when a proposed regulation has the potential of affecting all industries to consider all entities with less than 500 employees as small. According to 2001 U.S. Census data, when small entities are defined as entities with less than 500 employees, small entities own 86 percent of all establishments. Using EPA's assumption that small entities are equally likely to engage in commercial real estate transactions as large ones, we estimate that 86 percent of all commercial real estate transactions completed annually involve small entities. Applying this 86 percent to the “Most Likely Cost Scenario” and the “Upper Bound Cost Scenario” (See “Regulatory Evaluation” in this preamble.) provides a range in the number of potential transactions occurring annually of between 14,278 and 128,499. Based on 2001 Census Bureau data, the average annual revenue per employee for an entity is approximately $24,000. Therefore, even for a small entity receiving the minimum average annual revenue of $24,000 that makes one transaction a year (a very conservative assumption), the annual cost impact of $55 would represent only 0.23 percent of annual revenues. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so they could better evaluate its effects on them and participate in the rulemaking. The Coast Guard received no requests for assistance from small entities concerning this rulemaking and provided none. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). *Title:* Landowner Defenses to Liability under the Oil Pollution Act of 1990: Standards and Practices for Conducting All Appropriate Inquiries. *Summary of the Collection of Information:* For landowners choosing to avail themselves of the innocent-landowner defense, they or their environmental professionals must conduct all the appropriate inquiries specified in the rule. Depending upon the particular case, this may involve interviews, research, and reports. *Need for Information:* This rule is needed to assist prospective landowners in establishing the innocent-landowner defense. *Proposed Use of Information:* The information could be used by persons if their liability under OPA 90 for the discharge or substantial threat of discharge of oil were challenged in a court. *Description of the Respondents:* The respondents include anyone engaging in a commercial real estate transaction that may desire to assert an innocent landowner defense to liability under OPA 90. *Number of Respondents:* We estimate that there would be 16,602 respondents. This is based on an estimate made in the “Regulatory Evaluation” section of this preamble. *Frequency of Response:* 1 hour per response. *Burden of Response:* $67 per response. *Estimate of Total Annual Burden:* 16,602 respondents × 1 hour per response × $67 per response = $1,112,334 As required by 44 U.S.C. 3507(d), we submitted a copy of this rule to the Office of Management and Budget
(OMB)for its review of the collection of information. OMB has approved the collection effective February 13, 2008. The collection will be added to 33 CFR part 137. The corresponding approval number is OMB Control Number 1625-0111, which expires on February 13, 2011. You are not required to respond to a collection of information unless it displays a currently valid OMB control number. Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule uses the following voluntary consensus standard: ASTM E 1527-05, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The section that references this standard and the location where this standard is available is listed in § 137.15. Persons conducting all appropriate inquiries may use the procedures included in the ASTM E 1527-05 standard to comply with this rule. Environment We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(a), of the Instruction, from further environmental documentation. This rule concerns inquiries into the previous ownership and uses of facilities and the real property on which they are located, before they are acquired, to determine the presence or likely presence of oil. It has no effect on the environment. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 137 Environmental protection, Administrative practice and procedure, Petroleum, Intergovernmental relations, Reporting and recordkeeping requirements. Words of Issuance and Regulatory Text For the reasons set out in the preamble, the Coast Guard adds 33 CFR part 137 to read as follows: PART 137—OIL SPILL LIABILITY: STANDARDS FOR CONDUCTING ALL APPROPRIATE INQUIRIES UNDER THE INNOCENT LAND-OWNER DEFENSE Subpart A—Introduction Sec. 137.1 Purpose and applicability. 137.5 Disclosure obligations. 137.10 How are terms used in this part defined? 137.15 References: Where can I get a copy of the publication mentioned in this part? Subpart B—Standards and Practices 137.18 Duties of persons specified in § 137.1(a). 137.20 May voluntary industry standards be used to comply with this regulation? 137.25 Qualifications of the environmental professional. 137.30 Objectives and performance factors. 137.33 General all appropriate inquiries requirements. 137.35 Inquiries by an environmental professional. 137.40 Additional inquiries. 137.45 Interviews with past and present owners, operators, and occupants. 137.50 Reviews of historical sources of information. 137.55 Searches for recorded environmental cleanup liens. 137.60 Reviews of Federal, State, tribal and local government records. 137.65 Visual inspections of the facility, the real property on which the facility is located, and adjoining properties. 137.70 Specialized knowledge or experience on the part of persons specified in § 137.1(a). 137.75 The relationship of the purchase price to the value of the facility and the real property on which the facility is located, if oil was not at the facility or on the real property. 137.80 Commonly known or reasonably ascertainable information about the facility and the real property on which the facility is located. 137.85 The degree of obviousness of the presence or likely presence of oil at the facility and the real property on which the facility is located and the ability to detect the oil by appropriate investigation. Authority: 33 U.S.C. 2703(d)(4); Department of Homeland Security Delegation No. 14000. Subpart A—Introduction § 137.1 Purpose and applicability.
(a)In general under the Oil Pollution Act of 1990 (33 U.S.C. 2701, *et seq.* ), an owner or operator of a facility (as defined in § 137.10) that is the source of a discharge, or a substantial threat of discharge, of oil into the navigable waters or adjoining shorelines or the exclusive economic zone is liable for damages and removal costs resulting from the discharge or threat. However, if that person can demonstrate, among other criteria not addressed in this part, that they did not know and had no reason to know at the time of their acquisition of the real property on which the facility is located that oil was located on, in, or at the facility, the person may be eligible for the innocent landowner defense to liability under 33 U.S.C. 2703(d)(4). One element of the defense is that the person made all appropriate inquiries into the nature of the real property on which the facility is located before acquiring it. The purpose of this part is to prescribe standards and practices for making those inquiries.
(b)Under 33 U.S.C. 2703(d)(4)(E), this part does not apply to real property purchased by a non-governmental entity or non-commercial entity for residential use or other similar uses where a property inspection and a title search reveal no basis for further investigation. In those cases, the property inspection and title search satisfy the requirements of this part.
(c)This part does not affect the existing OPA 90 liability protections for State and local governments that acquire a property involuntarily in their functions as sovereigns under 33 U.S.C. 2703(d)(2)(B). Involuntary acquisition of properties by State and local governments fall under the provisions of 33 U.S.C. 2703(d)(2)(B), not under the all-appropriate-inquiries provision of 33 U.S.C. 2703(d)(4) and this part. § 137.5 Disclosure obligations.
(a)Under 33 U.S.C. 2703(c)(1), persons specified in § 137.1(a), including environmental professionals, must report the incident as required by law if they know or have reason to know of the incident.
(b)This part does not limit or expand disclosure obligations under any Federal, State, tribal, or local law. It is the obligation of each person, including environmental professionals, conducting inquiries to determine his or her respective disclosure obligations under Federal, State, tribal, and local law and to comply with them. § 137.10 How are terms used in this part defined?
(a)The following terms have the same definitions as in 33 U.S.C. 2701: *damages* ; *discharge* ; *incident* ; *liable* or *liability* ; *oil* ; *owner or operator* ; and *removal costs* .
(b)As used in this part— *Abandoned property* means a property that, because of its general disrepair or lack of activity, a reasonable person could believe that there is an intent on the part of the current owners to surrender their rights to the property. *Adjoining property* means real property the border of which is shared in part or in whole with that of the subject property or that would be shared in part or in whole with that of the property but for a street, road, or other public thoroughfare separating the properties. *Data gap* means a lack of, or inability to, obtain information required by subpart B of this part despite good faith efforts by the environmental professional or persons specified in § 137.1(a), as appropriate, to gather the information under § 137.33. *Environmental professional* means an individual who meets the requirements of § 137.25. *Facility* means any structure, group of structures, equipment, or device (other than a vessel) which is used for one or more of the following purposes: exploring for, drilling for, producing, storing, handling, transferring, processing, or transporting oil. This term includes any motor vehicle, rolling stock, or pipeline used for one or more of these purposes. *Good faith* means the absence of any intention to seek an unfair advantage or to defraud another party; an honest and sincere intention to fulfill one's obligations in the conduct or transaction concerned. *Institutional controls* means non-engineered instruments, such as administrative and/or legal controls, that help to minimize the potential for human exposure to oil discharge and/or protect the integrity of a removal action. *Relevant experience* means participation in the performance of all-appropriate-inquiries investigations, environmental site assessments, or other site investigations that may include environmental analyses, investigations, and remediation which involve the understanding of surface and subsurface environmental conditions and the processes used to evaluate these conditions and for which professional judgment was used to develop opinions regarding conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located. § 137.15 References: Where can I get a copy of the publication mentioned in this part? Section 137.20 of this part refers to ASTM E 1527-05, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. That document is available from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959. It is also available for inspection at the Coast Guard National Pollution Funds Center, 4200 Wilson Boulevard, Suite 1013, Arlington, VA 22203-1804. Subpart B—Standards and Practices § 137.18 Duties of persons specified in § 137.1(a). In order to make all appropriate inquiries, persons seeking to establish the liability protection under § 137.1(a) must conduct the inquiries and investigations as required in this part and ensure that the inquiries and investigations required to be made by environmental professionals are made. § 137.20 May industry standards be used to comply with this regulation? The industry standards in ASTM E 1527-05, (Referenced in § 137.15) may be used to comply with the requirements set forth in §§ 137.45 through 137.85 of this part. Use of ASTM E 1527-05 for this purpose is optional and not mandatory. § 137.25 Qualifications of the environmental professional.
(a)An environmental professional is an individual who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of the presence or likely presence of oil at a facility and the real property on which the facility is located sufficient to meet the objectives and performance factors in § 137.30(a) and (b).
(1)Such a person must—
(i)Hold a current Professional Engineer's or Professional Geologist's license or registration from a State, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) and have the equivalent of 3 years of full-time relevant experience;
(ii)Be licensed or certified by the Federal government, a State, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) to perform environmental inquiries under § 137.35 and have the equivalent of 3 years of full-time relevant experience;
(iii)Have a Baccalaureate or higher degree from an accredited institution of higher education in a discipline of engineering or science and the equivalent of 5 years of full-time relevant experience; or
(iv)Have the equivalent of 10 years of full-time relevant experience.
(2)An environmental professional should remain current in his or her field through participation in continuing education or other activities.
(3)The requirements for an environmental professional in this section do not preempt State professional licensing or registration requirements, such as those for a professional geologist, engineer, or site-remediation professional. Before commencing work, a person should determine the applicability of State professional licensing or registration laws to the activities to be undertaken as part of an inquiry under § 137.35(b).
(4)A person who does not qualify as an environmental professional under this section may assist in the conduct of all appropriate inquiries according to this part if the person is under the supervision or responsible charge of an environmental professional meeting the requirements of this section when conducting the inquiries. § 137.30 Objectives and performance factors.
(a)*Objectives.* This part is intended to result in the identification of conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located. In order to meet the objectives of this regulation, persons specified in § 137.1(a) and the environmental professional must seek to identify, through the conduct of the standards and practices in this subpart, the following types of information about the facility and the real property on which the facility is located:
(1)Current and past uses and occupancies of the facility and the real property on which the facility is located.
(2)Current and past uses of oil.
(3)Waste management and disposal activities that indicate presence or likely presence of oil.
(4)Current and past corrective actions and response activities that indicate presence or likely presence of oil.
(5)Engineering controls.
(6)Institutional controls, such as zoning restrictions, building permits, and easements.
(7)Properties adjoining or located nearby the facility and the real property on which the facility is located that have environmental conditions that could have resulted in conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located.
(b)*Performance factors.* In order to meet this part and to meet the objectives stated in paragraph
(a)of this section, the persons specified in § 137.1(a) or the environmental professional (as appropriate to the particular standard and practice) must—
(1)Gather the information that is required for each standard and practice listed in this subpart that is publicly available, is obtainable from its source within a reasonable time and cost, and can be reviewed practicably; and
(2)Review and evaluate the thoroughness and reliability of the information gathered in complying with each standard and practice listed in this subpart taking into account information gathered in the course of complying with the other standards and practices of this part. § 137.33 General all appropriate inquiries requirements.
(a)All appropriate inquiries must be conducted within 1 year before the date of acquisition of the real property on which the facility is located, as evidenced by the date of receipt of the documentation transferring title to, or possession of, the real property and must include:
(1)An inquiry by an environmental professional, as provided in § 137.35.
(2)The collection of information under § 137.40 by persons specified in § 137.1(a).
(b)The following components of the all appropriate inquiries must be conducted or updated within 180 days before the date of acquisition of the real property on which the facility is located:
(1)Interviews with past and present owners, operators, and occupants. See § 137.45.
(2)Searches for recorded environmental cleanup liens. See § 137.55.
(3)Reviews of Federal, State, tribal, and local government records. See § 137.60.
(4)Visual inspections of the facility, the real property on which the facility is located, and adjoining properties. See § 137.65.
(5)The declaration by the environmental professional. See § 137.35(d).
(c)All appropriate inquiries may include the results of and information contained in an inquiry previously conducted by, or on behalf of, persons specified in § 137.1(a) who are responsible for the inquiries for the facility and the real property on which the facility is located if—
(1)The information was collected during the conduct of an all-appropriate-inquiries investigation under this part.
(2)The information was collected or updated within 1 year before the date of acquisition of the real property on which the facility is located.
(3)The following components of the inquiries were conducted or updated within 180 days before the date of acquisition of the real property on which the facility is located:
(i)Interviews with past and present owners, operators, and occupants. See § 137.45.
(ii)Searches for recorded environmental cleanup liens. See § 137.55.
(iii)Reviews of Federal, State, tribal, and local government records. See § 137.60.
(iv)Visual inspections of the facility, the real property on which the facility is located, and the adjoining properties. See § 137.65.
(v)The declaration by the environmental professional. See § 137.35(d).
(4)Previously collected information is updated by including relevant changes in the conditions of the facility and the real property on which the facility is located and specialized knowledge, as outlined in § 137.70, of the persons conducting the all appropriate inquiries for the facility and the real property on which the facility is located, including persons specified in § 137.1(a) and the environmental professional.
(d)All appropriate inquiries may include the results of an environmental professional's report under § 137.35(c) that have been prepared by or for other persons if—
(1)The reports meet the objectives and performance factors in § 137.30(a) and (b); and
(2)The person specified in § 137.1(a) reviews the information and conducts the additional inquiries under §§ 137.70, 137.75, and 137.80 and updates the inquiries requiring an update under paragraph
(b)of this section.
(e)To the extent there are data gaps that affect the ability of persons specified in § 137.1(a) and environmental professionals to identify conditions indicative of the presence or likely presence of oil, the gaps must be identified in the report under § 137.35(c)(2). In addition, the sources of information consulted to address data gaps should be identified and the significance of the gaps noted. Sampling and analysis may be conducted to develop information to address data gaps.
(f)Any conditions indicative of the presence or likely presence of oil identified as part of the all-appropriate-inquiries investigation should be noted in the report. § 137.35 Inquiries by an environmental professional.
(a)Inquiries by an environmental professional must be conducted either by the environmental professional or by a person under the supervision or responsible charge of an environmental professional.
(b)The inquiry of the environmental professional must include the requirements in §§ 137.45 (interviews with past and present owners), 137.50 (reviews of historical sources), 137.60 (reviews of government records), 137.65 (visual inspections), 137.80 (commonly known or reasonably ascertainable information) and 137.85 (degree of obviousness of the presence or likely presence of oil). In addition, the inquiry should take into account information provided to the environmental professional by the person specified in § 137.1(a) conducting the additional inquiries under § 137.40.
(c)The results of the inquiry by an environmental professional must be documented in a written report that, at a minimum, includes the following:
(1)An opinion as to whether the inquiry has identified conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located.
(2)An identification of data gaps in the information developed as part of the inquiry that affect the ability of the environmental professional to identify conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located. The report must also indicate whether the gaps prevented the environmental professional from reaching an opinion regarding the identification of conditions indicative of the presence or likely presence of oil.
(3)The qualifications of the environmental professional.
(4)An opinion regarding whether additional appropriate investigation is necessary.
(d)The environmental professional must place the following statements in the written document identified in paragraph
(c)of this section and sign the document: “[I, We] declare that, to the best of [my, our] professional knowledge, [I, we] meet the requirements under 33 CFR 137.25 for an environmental professional.” and “[I, We] have the specific qualifications based on education, training, and experience to assess the nature, history, and setting of a facility and the real property on which it is located. [I, We] have developed and conducted all appropriate inquiries according to the standards and practices in 33 CFR part 137.” § 137.40 Additional inquiries.
(a)Persons specified in § 137.1(a) must conduct inquiries in addition to those conducted by the environmental professional under § 137.35 and may provide the information associated with these additional inquiries to the environmental professional responsible for conducting the activities listed in § 137.35—
(1)As required by § 137.55 and if not otherwise obtained by the environmental professional, environmental cleanup liens against the facility and the real property on which it is located that are filed or recorded under Federal, State, tribal, or local law.
(2)As required by § 137.70, specialized knowledge or experience of the person specified in § 137.1(a).
(3)As required by § 137.75, the relationship of the purchase price to the fair market value of the facility and the real property on which the facility is located if the oil was not at the facility and the real property on which it is located.
(4)As required by § 137.80 and if not otherwise obtained by the environmental professional, commonly known or reasonably ascertainable information about the facility and the real property on which it is located.
(b)[Reserved] § 137.45 Interviews with past and present owners, operators, and occupants.
(a)Interviews with owners, operators, and occupants of the facility and the real property on which the facility is located must be conducted for the purposes of achieving the objectives and performance factors of § 137.30(a) and (b).
(b)The inquiry of the environmental professional must include interviewing the current owner and occupant of the facility and the real property on which the facility is located. If the facility and the real property on which the facility is located has multiple occupants, the inquiry of the environmental professional must include interviewing major occupants, as well as those occupants likely to use, store, treat, handle or dispose of oil or those who have likely done so in the past.
(c)The inquiry of the environmental professional also must include, to the extent necessary to achieve the objectives and performance factors in § 137.30(a) and (b), interviewing one or more of the following persons:
(1)Current and past facility and real property managers with relevant knowledge of uses and physical characteristics of the facility and the real property on which the facility is located.
(2)Past owners, occupants, or operators of the facility and the real property on which the facility is located.
(3)Employees of current and past occupants of the facility and the real property on which the facility is located.
(d)In the case of inquiries conducted at abandoned properties where there is evidence of potential unauthorized uses or evidence of uncontrolled access, the environmental professional's inquiry must include an interview of at least one owner or occupant of a neighboring property from which it appears possible that the owner or occupant of the neighboring property could have observed use or other presence or likely presence of oil. § 137.50 Reviews of historical sources of information.
(a)Historical documents and records must be reviewed for the purposes of achieving the objectives and performance factors of § 137.30(a) and (b). Historical documents and records may include, but are not limited to, aerial photographs, fire insurance maps, building department records, chain of title documents, and land use records.
(b)Historical documents and records reviewed must cover a period of time as far back in the history of the real property to when the first structure was built or when it was first used for residential, agricultural, commercial, industrial, or governmental purposes. The environmental professional may exercise professional judgment in context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records. § 137.55 Searches for recorded environmental cleanup liens.
(a)All appropriate inquiries must include a search for the existence of environmental cleanup liens against the facility and the real property on which the facility is located that are filed or recorded under Federal, State, tribal, or local law.
(b)All information collected by persons specified in § 137.1(a) rather than an environmental professional regarding the existence of environmental cleanup liens associated with the facility and the real property on which the facility is located may be provided to the environmental professional or retained by the applicable party. § 137.60 Reviews of Federal, State, tribal, and local government records.
(a)Federal, State, tribal, and local government records or databases of government records of the facility, the real property on which the facility is located, and adjoining properties must be reviewed for the purposes of achieving the objectives and performance factors of § 137.30(a) and (b).
(b)With regard to the facility and the property on which the facility is located, the review of Federal, State, and tribal government records or databases of the government records and local government records and databases of the records should include—
(1)Records of reported oil discharges present, including site investigation reports for the facility and the real property on which the facility is located;
(2)Records of activities, conditions, or incidents likely to cause or contribute to discharges or substantial threat of discharges of oil, including landfill and other disposal unit location records and permits, storage tank records and permits, hazardous waste handler and generator records and permits, Federal, tribal and State government listings of sites identified as priority cleanup sites, and spill reporting records;
(3)Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) records;
(4)Public health records;
(5)Emergency Response Notification System records;
(6)Registries or publicly available lists of engineering controls; and
(7)Registries or publicly available lists of institutional controls, including environmental land use restrictions, applicable to the facility and the real property on which the facility is located.
(c)With regard to nearby or adjoining properties, the review of Federal, State, tribal, and local government records or databases of government records should include the identification of the following:
(1)Properties for which there are government records of reported discharges or substantial threat of discharges of oil. Such records or databases containing such records and the associated distances from the facility and the real property on which the facility is located for which such information should be searched include the following:
(i)Records of National Priorities List
(NPL)sites or tribal- and State-equivalent sites (one mile).
(ii)Resource Conservation and Recovery Act
(RCRA)properties subject to corrective action (one mile).
(iii)Records of Federally-registered, or State-permitted or -registered, hazardous waste sites identified for investigation or remediation, such as sites enrolled in State and tribal voluntary cleanup programs and tribal- and State-listed brownfield sites (one-half mile).
(iv)Records of leaking underground storage tanks (one-half mile).
(2)Properties that previously were identified or regulated by a government entity due to environmental concerns at the facility and the real property on which the facility is located. The records or databases containing the records and the associated distances from the facility and the real property on which the facility is located for which the information should be searched include the following:
(i)Records of delisted NPL sites (one-half mile).
(ii)Registries or publicly available lists of engineering controls (one-half mile).
(iii)Records of former CERCLIS sites with no further remedial action notices (one-half mile).
(3)Properties for which there are records of Federally-permitted, State-permitted or -registered, or tribal-permitted or -registered waste management activities. The records or databases that may contain the records include the following:
(i)Records of RCRA small quantity and large quantity generators (adjoining properties).
(ii)Records of Federally-permitted, State-permitted or -registered, or tribal-permitted landfills and solid waste management facilities (one-half mile).
(iii)Records of registered storage tanks (adjoining property).
(4)A review of additional government records with regard to sites identified under paragraphs (c)(1) through (c)(3) of this section may be necessary in the judgment of the environmental professional for the purpose of achieving the objectives and performance factors of §§ 137.30(a) and (b).
(d)The search distance from the real property boundary for reviewing government records or databases of government records listed in paragraph
(c)of this section may be modified based upon the professional judgment of the environmental professional. The rationale for the modifications must be documented by the environmental professional. The environmental professional may consider one or more of the following factors in determining an alternate appropriate search distance—
(1)The nature and extent of a discharge.
(2)Geologic, hydrogeologic, or topographic conditions of the property and surrounding environment.
(3)Land use or development densities.
(4)The property type.
(5)Existing or past uses of surrounding properties.
(6)Potential migration pathways (e.g., groundwater flow direction, prevalent wind direction).
(7)Other relevant factors. § 137.65 Visual inspections of the facility, real property on which the facility is located, and adjoining properties.
(a)For the purpose of achieving the objectives and performance factors of § 137.30(a) and (b), the inquiry of the environmental professional must include the following:
(1)A visual on-site inspection of the facility and the real property on which the facility is located, and the improvements at the facility and real property, including a visual inspection of the areas where oil may be or may have been used, stored, treated, handled, or disposed. Physical limitations to the visual inspection must be noted.
(2)A visual inspection of adjoining properties, from the subject real property line, public rights-of-way, or other vantage point (e.g., aerial photography), including a visual inspection of areas where oil may be or may have been stored, treated, handled or disposed. A visual on-site inspection is recommended, though not required. Physical limitations to the inspection of adjacent properties must be noted.
(b)Except as in paragraph
(c)of this section, a visual on-site inspection of the facility and the real property on which the facility is located must be conducted.
(c)An on-site inspection is not required if an on-site visual inspection of the facility and the real property on which the facility is located cannot be performed because of physical limitations, remote and inaccessible location, or other inability to obtain access to the facility and the real property on which the facility is located after good faith efforts have been taken to obtain access. The mere refusal of a voluntary seller to provide access to the facility and the real property on which the facility is located is not justification for not conducting an on-site inspection. The inquiry of the environmental professional must include—
(1)Visually inspecting the facility and the real property on which the facility is located using another method, such as aerial imagery for large properties, or visually inspecting the facility and the real property on which the facility is located from the nearest accessible vantage point, such as the property line or public road for small properties;
(2)Documenting the efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful; and
(3)Documenting other sources of information regarding the presence or likely presence of oil at the facility and the real property on which the facility is located that were consulted according to § 137.30(a). The documentation should include comments, if any, by the environmental professional on the significance of the failure to conduct a visual on-site inspection of the facility and the real property on which the facility is located with regard to the ability to identify conditions indicative of the presence or likely presence of oil at the facility and the real property. § 137.70 Specialized knowledge or experience on the part of persons specified in § 137.1(a).
(a)For the purpose of identifying conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located, persons specified in § 137.1(a) must take into account their own specialized knowledge of the facility and the real property on which the facility is located, the area surrounding the facility and the real property on which the facility is located, and the conditions of adjoining properties and their experience relevant to the inquiry.
(b)The results of all appropriate inquiries under § 137.33 must take into account the relevant and applicable specialized knowledge and experience of the persons specified in § 137.1(a) responsible for undertaking the inquiry. § 137.75 The relationship of the purchase price to the value of the facility and the real property on which the facility is located, if oil was not at the facility or on the real property.
(a)Persons specified in § 137.1(a) must consider whether the purchase price of the facility and the real property on which the facility is located reasonably reflects the fair market value of the facility and real property if oil was not present or likely present.
(b)If the persons conclude that the purchase price does not reasonably reflect the fair market value of that facility and real property if oil was not at the facility and the real property, they must consider whether or not the differential in purchase price and fair market value is due to the presence or likely presence of oil. § 137.80 Commonly known or reasonably ascertainable information about the facility and the real property on which the facility is located.
(a)Throughout the inquiries, persons specified in § 137.1(a) and environmental professionals conducting the inquiry must take into account commonly known or reasonably ascertainable information within the local community about the facility and the real property on which the facility is located and consider that information when seeking to identify conditions indicative of the presence or likely presence of oil at the facility and the real property.
(b)Commonly known information may include information obtained by the person specified in § 137.1(a) or by the environmental professional about the presence or likely presence of oil at the facility and the real property on which the facility is located that is incidental to the information obtained during the inquiry of the environmental professional.
(c)To the extent necessary to achieve the objectives and performance factors of § 137.30(a) and (b), the person specified in § 137.1(a) and the environmental professional must gather information from varied sources whose input either individually or taken together may provide commonly known or reasonably ascertainable information about the facility and the real property on which the facility is located; the environmental professional may refer to one or more of the following sources of information:
(1)Current owners or occupants of neighboring properties or properties adjacent to the facility and the real property on which the facility is located.
(2)Local and state government officials who may have knowledge of, or information related to, the facility and the real property on which the facility is located.
(3)Others with knowledge of the facility and the real property on which the facility is located.
(4)Other sources of information, such as newspapers, Web sites, community organizations, local libraries, and historical societies. § 137.85 The degree of obviousness of the presence or likely presence of oil at the facility and the real property on which the facility is located and the ability to detect the oil by appropriate investigation.
(a)Persons specified in § 137.1(a) and environmental professionals conducting an inquiry of a facility and the real property on which it is located on their behalf must take into account the information collected under §§ 137.45 through 137.80 in considering the degree of obviousness of the presence or likely presence of oil at the facility and the real property on which the facility is located.
(b)Persons specified in § 137.1(a) and environmental professionals conducting an inquiry of a facility and the property on which the facility is located on their behalf must take into account the information collected under §§ 137.45 through 137.80 in considering the ability to detect the presence or likely presence of oil by appropriate investigation. The report of the environmental professional should include an opinion under § 137.35(c)(4) regarding whether additional appropriate investigation is necessary. Dated: January 7, 2008. William Grawe, Acting Director, National Pollution Funds Center, United States Coast Guard. [FR Doc. E8-329 Filed 1-11-08; 8:45 am] BILLING CODE 4910-15-P POSTAL SERVICE 39 CFR Part 20 Undeliverable Items AGENCY: Postal Service. ACTION: Final rule. SUMMARY: The Postal Service TM has implemented new standards for returned undeliverable-as-addressed items that were posted abroad with a United States return address. When this occurs, the Postal Service provides the return service but currently receives no payment for the services rendered. This final rule implements collection of a fee for returned items. DATES: *Effective Date:* January 14, 2008. FOR FURTHER INFORMATION CONTACT: Obataiye B. Akinwole, 703-292-5260, Bruce Marsh, 703-292-3570. SUPPLEMENTARY INFORMATION: Article RL 147 of the Letter Post Regulations of the Universal Postal Union (UPU), “Undeliverable Items,” allows all posts to collect handling charges for undeliverable-as-addressed pieces posted abroad by customers residing in their territories. In order to recover costs associated with handling these pieces, the Postal Service will collect the applicable First-Class Mail International postage for each returned item. List of Subjects in 39 CFR Part 20 Foreign relations, International postal services. Effective the date of this rulemaking the USPS formally adopts the UPU provisions into the *Mailing Standards of the United States Postal Service* , International Mail Manual (IMM®), incorporated by reference in the Code of Federal Regulations. See 39 CFR 20.1. PART 20—[AMENDED] 1. The authority citation for 39 CFR part 20 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 401, 404, 407, 408. 2. Revise the Mailing Standards of the United States Postal Service, International Mail Manual
(IMM)as follows: 7 Treatment of Inbound Mail 780 Items Mailed Abroad by or on Behalf of Senders in the United States *[Revise the heading of 781 as follows:]* 781 Payment Required *[Add new 781.1 using the current text of 781 as follows:]* 781.1 Postage Payment Required Payment of U.S. Postage is required to secure delivery of mail when the mailing is by or on behalf of a person or firm that is a resident of the United States and the foreign postage rate applied to such items is lower than the comparable U.S. domestic rate. *[Add new 781.2 as follows:]* 781.2 Handling Charges Undeliverable-as-addressed mail returned to the sender for which outbound postage was not paid to the USPS is subject to the payment of handling charges. On delivery to the sender, the sender may be charged the First-Class Mail International rate for the weight and shape of the returned piece. Neva R. Watson, Attorney, Legislative. [FR Doc. E8-392 Filed 1-11-08; 8:45 am] BILLING CODE 7710-12-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2007-1010; FRL-8515-6] Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Revised Motor Vehicle Emission Budgets for the Charleston 8-Hour Ozone Maintenance Area AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to approve a State Implementation Plan
(SIP)revision submitted by the State of West Virginia. The revision amends the 8-hour ozone maintenance plan for the Charleston area. This revision amends the maintenance plans' 2009 and 2018 motor vehicle emissions budgets (MVEBs) by reallocating a portion of the plans' safety margins which results in an increase in the MVEBs. The revised plan continues to demonstrate maintenance of the 8-hour national ambient air quality standard (NAAQS) for ozone. EPA is approving this SIP revision to the West Virginia maintenance plan for Charleston in accordance with the requirements of the Clean Air Act (CAA). DATES: This rule is effective on March 14, 2008 without further notice, unless EPA receives adverse written comment by February 13, 2008. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-1010 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail: febbo.carol@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-1010, Carol Febbo, Chief, Energy, Radiation and Indoor Environment Branch, Mailcode 3AP23, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-1010. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street, SE., Charleston, WV 25304. FOR FURTHER INFORMATION CONTACT: Martin Kotsch,
(215)814-3335, or by e-mail at *kotsch.martin@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we”, “us”, or “our” is used, we mean EPA. Table of Contents I. Background II. Summary of West Virginia's SIP Revision and EPA's Review III. Final Action IV. Statutory and Executive Order Reviews I. Background On July 11, 2006 (71 FR 39001) EPA redesignated the Charleston area of West Virginia to attainment for the 8-hour ozone NAAQS. For the Charleston area, the redesignation included approval of an 8-hour ozone maintenance plan, which identifies on-road MVEBs for VOCs and NO X , which are ozone precursors, which are then used for transportation planning and conformity purposes. Subsequently after the SIP approval by EPA, West Virginia discovered that the MVEBs which were included in the previously approved maintenance plan did not provide a sufficient buffer to account for unforseen future growth or significant changes in the planning assumption data which was used in developing the original MVEBs in its November 2005 submission. II. Summary of West Virginia's SIP Revision and EPA's Review 2009 and 2018 Motor Vehicle Emission Budgets On January 8, 2007, the State of West Virginia submitted to EPA a formal revision to its State Implementation Plan (SIP). The SIP revision proposes new MVEBs to reflect the reallocation of a portion of the differences (safety margins) between the total base year and total projected 2009 and 2018 emissions which produces an increase in the MVEBs. The base year is 2004 for the Charleston area. By increasing the MVEBs, the West Virginia Department of Environmental Protection (WVDEP) is ensuring that transportation conformity can be demonstrated in the Charleston area. The January 8, 2007 submittal, while increasing the MVEBs still ensures maintenance of the NAAQS for ozone for the Charleston area. Tables 1 and 2 and the discussion that follows describes the basis of the new MVEBs for the Charleston area. Table 1.—Charleston Area Reallocation of Safety Margin to the MVEBs 2004 base year 2009 projection 2018 projection Current MVEBs in the Approved Maintenance Plan (Tons/Day) VOC 16.1 11.6 7.2 NO X 26.4 19.8 8.2 Proposed MVEBs in the Revised Maintenance Plan (Tons/Day) VOC 16.1 12.9 7.5 NO X 26.4 22.9 9.5 Table 2.—Charleston Area Total Emissions (Point, Area and Mobile) Before and After Reallocation of Safety Margin to the MVEBs (Tons/Day) 2004 base year 2009 projection 2018 projection Current Total Emissions in the Approved Maintenance Plan VOC 52.3 46.8 45.1 NO X 129.4 102.4 80.6 Proposed Total Emissions in the Revised Maintenance Plan VOC 52.3 48.1 45.4 NO X 129.4 105.5 81.9 For the Charleston, West Virginia 8-hour ozone maintenance area addressed herein, the WVDEP recalculated the 2009 and 2018 MVEBs using revised planning data which became available after the original maintenance plan was submitted to EPA on November 30, 2005. The 2009 and 2018 MVEBs for VOCs and NO X emissions listed above in Table 1 under the Proposed MVEBs in the Revised Maintenance Plan section will serve as the new MVEBs for transportation conformity planning. As shown in Table 1, the State has proposed reallocating some of the previous safety margin into the MVEBs for both VOCs and NO X . The remaining surplus emissions have been reserved as residual safety margins in the total maintenance budgets to ensure continued maintenance of the 8-hour ozone NAAQS. To explain how the safety margins are determined and allocated, the VOC emissions for the Charleston area may be used as an example. In Table 2, listed under the Current Total Emissions in the Approved Maintenance Plan section, the total 2004 base year VOC emissions are 52.3 tons/day (tpd), which is the maximum amount of VOC emissions consistent with maintenance of the 8-hour ozone NAAQS. The total projected 2009 emissions are 46.8 tpd, which provides a 5.5 tpd VOC safety margin (i.e., the ozone NAAQS would continue to be maintained if total VOC emissions increased as much as 5.5 tpd above the projected 2009 emissions of 46.8 tpd). In the Proposed Total Emissions in the Revised Maintenance Plan section the total projected emissions for 2009 would be increased by 1.3 tpd through the increase in the allowable mobile emissions for VOC while still leaving a safety margin of 4.2 tpd. Therefore, even with the reallocation of some of the current safety margin into the MVEBs, the State of West Virginia has left a safety margin for any other unforseen growth. III. Final Action EPA is approving West Virginia's January 8, 2007 SIP revision submittal which amends the 8-hour ozone maintenance plans for the Charleston area. These revisions amend the maintenance plans' 2009 and 2018 MVEBs to reflect the reallocation of a portion of the plans' safety margins which results in an increase in the MVEBs. EPA is approving this SIP revision to the maintenance plan for the Charleston area because the January 8, 2007 submittal continues to demonstrate maintenance of the 8-hour ozone NAAQS. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment, since no significant adverse comments were received on the SIP revision at the State level. However, in the “Proposed Rules” section of today's **Federal Register** , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on March 14, 2008 without further notice unless EPA receives adverse comment by February 13, 2008. If EPA receives adverse comment, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time IV. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 14, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve the revised motor vehicle emission budgets for the 8-hour Charleston Maintenance Plan may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Dated: December 27, 2007. William T. Wisniewski, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart XX—West Virginia 2. In § 52.2520, the table in paragraph
(e)is amended by revising the entry for the 8-Hour Ozone Maintenance Plan for the Charleston, WV Area at the end of the table to read as follows: § 52.2520 Identification of plan.
(e)* * * Name of non- regulatory SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation * * * * * * * 8-Hour Ozone Maintenance Plan for the Charleston, WV Area Charleston Area (Kanawha and Putnam Counties) 11/30/05 7/11/06 71 FR 39001 01/08/07 1/14/08 [Insert page number where the document begins] Action includes approval of the following new motor vehicle emission budgets (MVEBs): 22.9 tons day
(tpd)for 2009 and 9.5 tpd for 2018 for NO X and 12.9 tpd for 2009 and 7.5 tpd for 2018 for VOC. * * * * * * * [FR Doc. E8-263 Filed 1-11-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2007-1149; FRL-8515-4] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Fredericksburg and Shenandoah National Park 8-Hour Ozone Areas Movement From the Nonattainment Area List to the Maintenance Area List AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to approve revisions to the Virginia State Implementation Plan
(SIP)that was submitted on August 14, 2007 by the Commonwealth of Virginia. The revisions move the Fredericksburg and the Shenandoah National Park 8-Hour Ozone Areas from the Nonattainment Area list to the Maintenance Area list. EPA is approving these revisions to move the Fredericksburg 8-Hour Ozone Nonattainment Area (Spotsylvania County, Stafford County, and Fredericksburg City) and the Shenandoah National Park 8-Hour Ozone Nonattainment Area (portions of the park located in Page and Madison Counties) from the list of nonattainment areas to the list of maintenance areas in accordance with the requirements of the Clean Air Act (CAA). DATES: This rule is effective on March 14, 2008 without further notice, unless EPA receives adverse written comment by February 13, 2008. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-1149 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. *B. E-mail:* *fernandez.cristina@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-1149, Cristina Fernandez, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-1149. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: Melissa Linden,
(215)814-2096, or by e-mail at *linden.melissa@epa.gov* . SUPPLEMENTARY INFORMATION: I. Background On September 22, 2004, under the 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) the Fredericksburg area and the Shenandoah National Park area were designated as nonattainment areas. The Shenandoah National Park area formally submitted a redesignation request on September 21, 2005 along with a maintenance plan on September 23, 2005. On January 3, 2006, (71 FR 24) the U.S. Environmental Protection Agency
(EPA)published the final rulemaking actions approving the redesignation of the Shenandoah National Park from nonattainment of the 8-Hour Ozone Standard to attainment. The Fredericksburg area formally submitted a redesignation request on May 2, 2005 along with a maintenance plan on May 4, 2005. On December 23, 2005, (70 FR 76165) the U.S. Environmental Protection Agency
(EPA)published the final rulemaking actions approving the redesignation of the Fredericksburg area from nonattainment of the 8-Hour Ozone Standard to attainment. Both redesignations were done in accordance with the Clean Air Act section 107(d)(3)(E). II. Summary of SIP Revision On August 14, 2007, the Commonwealth of Virginia submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of a regulatory change that moves the Fredericksburg 8-Hour Ozone Nonattainment Area and the Shenandoah National Park 8-Hour Ozone Nonattainment Area from the list of nonattainment areas to the list of maintenance areas. The purpose of Virginia's State Implementation Plan revision consists of a regulatory change to move the Fredericksburg 8-Hour Ozone Nonattainment Area (Spotsylvania County, Stafford County, and Fredericksburg City) and the Shenandoah National Park 8-Hour Ozone Nonattainment Area (portions of the park located in Page and Madison Counties) from the list of nonattainment areas found in regulation 9 VAC 5-20-204 to the list of maintenance areas found in regulation 9 VAC 5-20-203. III. General Information Pertaining to SIP Submittals from the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information
(1)that are generated or developed before the commencement of a voluntary environmental assessment;
(2)that are prepared independently of the assessment process;
(3)that demonstrate a clear, imminent and substantial danger to the public health or environment; or
(4)that are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.” Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law. IV. Final Action EPA is approving the Commonwealth's request to move the Fredericksburg area and the Shenandoah National Park area from 8-Hour Ozone Nonattainment list to the 8-Hour Ozone Maintenance list. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's ** Federal Register ** , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on March 14, 2008 without further notice unless EPA receives adverse comment by February 13, 2008. If EPA receives adverse comment, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. V. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission; to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by *March 14, 2008* . Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve the revision to move the Fredericksburg area and the Shenandoah National Park area from the 8-Hour Ozone Nonattainment list to the 8-Hour Ozone Maintenance list may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Ozone, Recordkeeping and reporting requirements, Volatile organic compounds. Dated: December 27, 2007. William T. Wisniewski, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for 40 CFR part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart VV—Virginia 2. In § 52.2420, the table in paragraph
(c)is amended by revising the entries for Chapter 20, section 5-20-203 and 5-20-204 to read as follows: § 52.2420 Identification of plan.
(c)* * * Epa-Approved Virginia Regulations And Statutes State citation (9 VAC 5) Title/subject State effective date EPA approval date Explanation [former SIP citation] * * * * * * * Chapter 20 General Provisions * * * * * * * Part II Air Quality Programs * * * * * * * 5-20-203 Air Quality Maintenance Areas 09/01/06 01/14/08 [Insert page number where the document begins] Fredericksburg and Shenandoah 8-Hour Ozone Areas are added. 5-20-204 Nonattainment Areas 09/01/06 01/14/08 [Insert page number where the document begins] Fredericksburg and Shenandoah 8-Hour Ozone Areas are deleted. * * * * * * * [FR Doc. E8-265 Filed 1-11-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0175; EPA-R03-OAR-2007-0476; EPA-R03-OAR-2007-0344; FRL-8515-1] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of 8-Hour Ozone Nonattainment Areas to Attainment and Approval of the Areas' Maintenance Plans and 2002 Base-Year Inventories; Correction AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule; correcting amendment. SUMMARY: This document corrects an error in the preamble language of the final rules pertaining to EPA's approval of the redesignation of Reading, Erie, and Youngstown 8-hour ozone nonattainment areas to attainment, maintenance plans and 2002 base year inventories submitted by the Commonwealth of Pennsylvania. DATES: *Effective Date:* January 14, 2008. FOR FURTHER INFORMATION CONTACT: Rose Quinto,
(215)814-2182 or by e-mail at *quinto.rose@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document wherever “we” or “our” are used we mean EPA. On August 24, 2007 (72 FR 48559); October 9, 2007 (72 FR 57207); and October 19, 2007 (72 FR 59213), we published final rulemaking actions announcing our approval and promulgation of Pennsylvania's redesignation of the Reading, Erie, and Youngstown 8-hour ozone nonattainment areas to attainment and approval of the associated maintenance plans and 2002 base year inventories, respectively. In these documents, EPA inadvertently printed the incorrect data in a table entitled, Adequate and Approved Motor Vehicle Emission Budgets (MVEBs) in tons per day
(tpd)for 2009 and 2018. This action corrects the tables in the final rulemaking actions reflecting the correct data for the 2009 and 2018 MVEBs for Reading, Erie, and Youngstown Areas. Corrections
(1)Reading, Berks County, Pennsylvania Ozone Nonattainment Area (Reading Area) In rule document E7-16683, on page 48561, the table is corrected as follows: Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Day
(TPD)Budget year NO <sup>X</sup> VOC 2009 21.3 13.1 2018 9.0 7.5
(2)Erie County, Pennsylvania Ozone Nonattainment Area (Erie Area) In rule document E7-19633, on page 57208, the table is corrected as follows: Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Day
(TPD)Budget year NO <sup>X</sup> VOC 2009 6.9 16.1 2018 4.5 7.3
(3)Mercer County Portion of the Youngstown-Warren-Sharon, OH-PA Ozone Nonattainment Area (Youngstown Area) In rule document E7-20567, on page 59214, the table is corrected as follows: Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Day
(TPD)Budget Year NO <sup>X</sup> VOC 2009 4.5 11.6 2018 3.0 5.3 Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because this rule is not substantive and imposes no regulatory requirements, but merely corrects a citation in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(3)(B). Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 *et seq* ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995
(UMRA)(Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of governments, as specified by Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq* ). The Congressional Review Act (5 U.S.C. 801 *et seq.* ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA had made such a good cause finding, including the reasons therefore, and established an effective date of January 14, 2008. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . These corrections to the tables on the MVEBs for Reading, Erie, and Youngstown, Pennsylvania are not “major rules” as defined by 5 U.S.C. 804(2). Dated: December 27, 2007. William T. Wisniewski, Acting Regional Administrator, Region III. [FR Doc. E8-277 Filed 1-11-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0625; FRL-8515-2] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of the York (York and Adams Counties) 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan and 2002 Base Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a State Implementation Plan
(SIP)revision submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the York (York and Adams Counties) ozone nonattainment area (York Area) be redesignated as attainment for the 8-hour ozone ambient air quality standard (NAAQS). EPA is approving the ozone redesignation request for York Area. In conjunction with its redesignation request, PADEP submitted a SIP revision consisting of a maintenance plan for York Area, which EPA is approving, that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. EPA is also approving the motor vehicle emission budgets (MVEBs) and the adequacy determination for those MVEBs that are identified in the York Area maintenance plan for purposes of transportation conformity. In addition, EPA is approving the 2002 base year inventory for the York Area that PADEP submitted. EPA is approving the redesignation request, the maintenance plan, and the 2002 base year emissions inventory as revisions to the Pennsylvania SIP in accordance with the requirements of the Clean Air Act (CAA). DATES: *Effective Date:* This final rule is effective on February 13, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2007-0625. All documents in the docket are listed in the *www.regulations.gov* Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environment Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Rose Quinto,
(215)814-2182, or by e-mail at *quinto.rose@epa.gov* . SUPPLEMENTARY INFORMATION: I. Background On October 24, 2007 (72 FR 60296), EPA published a notice of proposed rulemaking
(NPR)for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's redesignation request and maintenance plan SIP revisions for the York Area that provide for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. The NPR also proposed approval of a 2002 base year emissions inventory for the York Area. The formal SIP revisions were submitted by PADEP on June 14, 2007. Other specific requirements of Pennsylvania's redesignation request and maintenance plan SIP revisions, and the rationales for EPA's proposed actions, are explained in the NPR and will not be restated here. No public comments were received on the NPR. However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23591, April 30, 2004). *South Coast Air Quality Management Dist* . v. *EPA* , 472 F.3d 882 (D.C.Cir. 2006). On June 8, 2007, in *South Coast Air Quality Management Dist.* v. *EPA,* Docket No. 04-1201, in response to several petitions for rehearing, the DC Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the CAA as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:
(1)Nonattainment area New Source Review
(NSR)requirements based on an area's 1-hour nonattainment classification;
(2)Section 185 penalty fees for the 1-hour severe or extreme nonattainment areas; and
(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain NAAQS. In addition, the June 8 decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of the 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified the 1-hour conformity determinations are not required for anti-backsliding purposes. For the reasons set forth in the proposal, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in the light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests. II. Final Action EPA is approving the Commonwealth of Pennsylvania's redesignation request, maintenance plan, and 2002 base year emissions inventory SIP revisions because they satisfy the requirements for approval. EPA has evaluated Pennsylvania's redesignation request that was submitted on June 14, 2007 and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the York Area has attained the 8-hour ozone standard. The final approval of this redesignation request will change the designation of the York Area from nonattainment to attainment for the 8-hour ozone standard. EPA is approving the maintenance plan for the York Area submitted on June 14, 2007 as a revision to the Pennsylvania SIP. EPA is also approving the MVEBs submitted by PADEP in conjunction with its redesignation request. In addition, EPA is approving the 2002 base year emissions inventory submitted by PADEP on June 14, 2007 as a revision to the Pennsylvania SIP. In this final rulemaking, EPA is notifying the public that we have found that the MVEBs for NO <sup>X</sup> and VOCs in the York Area for the 8-hour ozone maintenance plan are adequate and approved for conformity purposes. As a result of our finding, the York Area must use the MVEBs from the submitted 8-hour ozone maintenance plan for future conformity determinations. The adequate and approved MVEBs are provided in the following table: Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Day
(TPD)Budget year VOC NO <sup>X</sup> 2009 15.9 22.8 2018 9.0 10.0 The York Area is subject to the CAA's requirement for the basic nonattainment areas until and unless it is redesignated to attainment. III. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This final rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Because this action affects the status of a geographical area, does not impose any new requirements on sources, or allows the state to avoid adopting or implementing other requirements, this action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801, *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by *March 14, 2008.* Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving the redesignation of the York Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the MVEBs identified in the maintenance plan and the 2002 base year emission inventory, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Dated: December 27, 2007. William T. Wisniewski, Acting Regional Administrator, Region III. 40 CFR parts 52 and 81 are amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart NN—Pennsylvania 2. In § 52.2020, the table in paragraph (e)(1) is amended by adding an entry at the end of the table to read as follows: § 52.2020 Identification of plan.
(e)* * *
(1)* * * Name of non-regulatory SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation * * * * * * * 8-Hour Ozone Maintenance Plan and 2002 Base Year Emissions Inventory York, PA: Adams County, York County 06/14/07 *01/14/08* , [Insert page number where the document begins] PART 81—[AMENDED] 3. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* 4. In § 81.339, the table entitled “Pennsylvania—Ozone (8-Hour Standard)” is amended by revising the entry for York, PA, Adams County and York County to read as follows: § 81.339 Pennsylvania. Pennsylvania-Ozone (8-hour Standard) Designated area Designation a Date 1 Type Category/classification Date 1 Type * * * * * * * York, PA: Adams County, York County *02/13/08* Attainment a Includes Indian County located in each county or area, except otherwise noted. 1 This date is June 15, 2004, unless otherwise noted. [FR Doc. E8-268 Filed 1-11-08; 8:45 am] BILLING CODE 6560-50-P GENERAL SERVICES ADMINISTRATION 41 CFR Part 102-72 [FMR Amendment 2008-02; FMR Case 2007-102-5] RIN 3090-AI44 Federal Management Regulation; Delegated Leasing Authority, Real Property Policies Update AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Final rule. SUMMARY: The General Services Administration is amending the Federal Management Regulation
(FMR)to limit General Purpose leasing delegations for space acquisitions up to a maximum of 19,999 rentable square feet. DATES: *Effective Date:* January 14, 2008. FOR FURTHER INFORMATION CONTACT The Regulatory Secretariat, Room 4035, GS Building, Washington, DC 20405,
(202)501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Mr. Stanley C. Langfeld, Director, Regulations Management Division, Office of Governmentwide Policy, General Services Administration, at
(202)501-1737, or by e-mail at *Stanley.langfeld@gsa.gov* . Please cite FMR case 2007-102-5, Amendment 2008-02. SUPPLEMENTARY INFORMATION: A. Background The Government Accountability Office and the General Services Administration Office of Inspector General have reported that some Federal agencies using the delegated leasing authority issued to Federal agencies on September 25, 1996, are not following properly the instructions specified as a condition for use of the leasing delegation. To address the concerns raised by these audits, to facilitate compliance with all applicable laws and regulations governing the acquisition of real property leasehold interests, and to minimize risk to the Federal Buildings Fund, GSA will no longer authorize General Purpose leasing delegations for space acquisitions in excess of 19,999 rentable square feet. B. Executive Order 12866 The General Services Administration has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866. C. Regulatory Flexibility Act This final rule is not required to be published in the **Federal Register** for comment. Therefore, the Regulatory Flexibility Act does not apply. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501 *et seq.* E. Small Business Regulatory Enforcement Fairness Act This final rule is exempt from Congressional review under 5 U.S.C. 801, since it relates solely to agency management and personnel. List of Subjects in 41 CFR Part 102-72 Delegations of Authority Dated: December 14, 2007. Lurita A. Doan Administrator of General Services. For the reasons set forth in the preamble, GSA amends 41 CFR § 102-72 as set forth below: PART 102-72—DELEGATION OF AUTHORITY 1. The authority citation for 41 CFR part 102-72 continues to read as follows: Authority: 40 U.S.C. 121(c),
(d)and (e). 2. Amend § 102-72.30 by revising the first sentence of paragraph
(b)to read as follows: § 102-72.30 What are the different types of delegations related to real estate leasing?
(b)The Administrator of General Services has issued a standing delegation of authority (under a program known as “Can't Beat GSA Leasing”) to the heads of all Federal agencies to accomplish all functions relating to leasing of up to 19,999 rentable square feet of general purpose space for terms of up to 20 years and below prospectus level requirements, regardless of geographic location. * * * [FR Doc. E8-438 Filed 1-11-08; 8:45 am] BILLING CODE 6820-14-S GENERAL SERVICES ADMINISTRATION 41 CFR Part 102-84 [FMR Amendment 2008-01; FMR Case 2007-102-3] RIN 3090-AI42 Federal Management Regulation; Real Property Policies Update AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Final rule. SUMMARY: GSA is amending the Federal Management Regulation
(FMR)to update the legal citations and to incorporate additional policy guidance in accordance with Executive Order 13327. This final rule cancels and replaces in its entirety 41 CFR part 102-84, issued December 13, 2002. DATES: *Effective Date:* January 14, 2008. FOR FURTHER INFORMATION CONTACT: For clarification of content, contact Mr. Stanley C. Langfeld, Director, Regulations Management Division, Office of Governmentwide Policy, General Services Administration, at
(202)501-1737, or by e-mail at *Stanley.langfeld@gsa.gov.* The Regulatory Secretariat, General Services Administration, Room 4035, GS Building, 1800 F Street, NW., Washington, DC 20405,
(202)501-4755, for information pertaining to status or publication schedules. Please cite FMR case 2007-102-3, Amendment 2008-01. SUPPLEMENTARY INFORMATION: A. Background On December 13, 2002, GSA published Federal Property Management Regulation
(FPMR)Amendment D-99 as a final rule in the **Federal Register** (67 FR 76882), which removed all real property policy coverage from the FPMR and provided cross-references that directed readers to the coverage in the Federal Management Regulation (FMR). On February 4, 2004, the President signed Executive Order 13327, Federal Real Property Asset Management, requiring that the Administrator of General Services, in consultation with the Federal Real Property Council, establish and maintain a single, comprehensive database of all real property under the custody and control of all executive branch agencies, except when otherwise required for reasons of national security. B. Executive Order 12866 GSA has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866. C. Regulatory Flexibility Act This final rule is not required to be published in the **Federal Register** for comment. Therefore, the Regulatory Flexibility Act does not apply. D. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501 *et seq.* E. Small Business Regulatory Enforcement Fairness Act This final rule is exempt from Congressional review under 5 U.S.C. 801, since it relates solely to agency management and personnel. List of Subjects in 41 CFR Part 102-84 Annual Real Property Inventory. Dated: November 27, 2007. Lurita A. Doan, Administrator of General Services. For the reasons set forth in the preamble, GSA is revising in its entirety 41 CFR part 102-84 as set forth below: PART 102-84—ANNUAL REAL PROPERTY INVENTORIES Sec. 102-84.5 What is the scope of this part? 102-84.10 What is the purpose of the Annual Real Property Inventory program? 102-84.15 Why must I provide information for the Annual Real Property Inventory? 102-84.20 Where should I obtain the data required to be reported for the Annual Real Property Inventory? 102-84.25 Is it necessary for my agency to designate an official to serve as the point of contact for the real property inventories? 102-84.30 Is it necessary for my agency to certify the accuracy of its real property inventory submission? 102-84.35 Which agencies must submit a report for inclusion in the Annual Real Property Inventory? 102-84.40 What types of real property must I report for the Annual Real Property Inventory? 102-84.45 What types of real property are excluded from reporting for the Annual Real Property Inventory? 102-84.50 May the GSA Form 1166 be used to report information? 102-84.55 When are the Annual Real Property Inventory Reports due? Authority: 40 U.S.C. 121(c) § 102-84.5 What is the scope of this part? GSA's policies contained in this part apply to all Federal agencies. This part prescribes guidance that all Federal agencies must follow in preparing and submitting annual real property inventory information for real property owned, leased or otherwise managed by the United States. Detailed guidance implementing these policies is contained in the annual *Guidance for Real Property Inventory Reporting,* issued by the Federal Real Property Council and published by GSA. § 102-84.10 What is the purpose of the Annual Real Property Inventory program? The purpose of the Annual Real Property Inventory program is to:
(a)Promote efficient and economical use of Federal real property assets.
(b)Increase the level of agency accountability for asset management.
(c)Allow for comparing and benchmarking across various types of real property assets.
(d)Give decision makers the accurate, reliable data needed to make asset management decisions, including disposing of unneeded federal assets. § 102-84.15 Why must I provide information for the Annual Real Property Inventory? You must provide information for the Annual Real Property Inventory because:
(a)The Senate Committee on Appropriations requests that the Government maintain an Annual Real Property Inventory.
(b)Executive Order 12411, Government Work Space Management Reforms, dated March 29, 1983 (48 FR 13391, 3 CFR, 1983 Comp., p. 155), requires that Executive agencies:
(1)Produce and maintain a total inventory of work space and related furnishings and declare excess to the Administrator of General Services all such holdings that are not necessary to satisfy existing or known and verified planned programs; and
(2)Establish information systems, implement inventory controls and conduct surveys, in accordance with procedures established by the Administrator of General Services, so that a governmentwide reporting system may be developed.
(c)Executive Order 13327, *Federal Real Property Asset Management* , dated February 4, 2004, requires that the Administrator of General Services, in consultation with the Federal Real Property Council, establish and maintain a single, comprehensive and descriptive database of all real property under the custody and control of all executive branch agencies, except when otherwise required for reasons of national security. The Executive Order authorizes the Administrator to collect from each Executive agency such descriptive information, except for classified information, as the Administrator considers will best describe the nature, use, and extent of the real property holdings of the Federal Government. § 102-84.20 Where should I obtain the data required to be reported for the Annual Real Property Inventory? You should obtain data reported for the Annual Real Property Inventory from the most accurate real property asset management and financial management records maintained by your agency. § 102-84.25 Is it necessary for my agency to designate an official to serve as the point of contact for the real property inventories? Yes. You must designate an official to serve as your agency's point of contact for the Annual Real Property Inventories. We recommend that you designate the same point of contact for the Federally-owned and leased real property inventory, although separate points of contact are permitted. You must advise the General Services Administration, Office of Governmentwide Policy, Office of Real Property (MP), 1800 F Street, NW., Washington, DC 20405, in writing, of the name(s) of these representative(s) and any subsequent changes. § 102-84.30 Is it necessary for my agency to certify the accuracy of its real property inventory submission? Yes. Your agency's official designated in accordance with § 102-84.25 must certify the accuracy of the real property information submitted to GSA. § 102-84.35 Which agencies must submit a report for inclusion in the Annual Real Property Inventory? Each agency that has jurisdiction, custody, control, or otherwise manages Federal real property or enters into leases, is responsible for submitting the real property inventory information. Additional information on the responsibility for reporting inventory data is contained in the annual Guidance for Real Property Inventory Reporting. § 102-84.40 What types of real property must I report for the Annual Real Property Inventory? You must report for the Annual Real Property Inventory all land, buildings, and other structures and facilities owned by the United States (including wholly-owned Federal Government corporations) throughout the world, all real property leased by the United States from private individuals, organizations, and municipal, county, State, and foreign governments, and all real property otherwise managed by the United States where the ownership interest is held by a State or foreign government. Property to be reported includes, but is not limited to:
(a)Real property acquired by purchase, construction, donation, eminent domain proceedings, or any other method;
(b)Real property in which the Government has a long-term interest considered by the reporting agency as being equivalent to ownership. This would include land acquired by treaty or long-term lease ( *e.g.* , 99-year lease), and that your agency considers equivalent to Federally-owned land;
(c)Buildings or other structures and facilities owned by or leased to the Government, whether or not located on Government-owned land;
(d)Excess and surplus real property;
(e)Leased real property (including leased land, leased buildings, leased other structures and facilities, or any combination thereof);
(f)Real property leased rent free or for a nominal rental rate, if the real property is considered significant by the reporting agency; and
(g)Real property where title is held by a State or foreign government, but rights for use have been granted to a Federal entity in an arrangement other than a leasehold. § 102-84.45 What types of real property are excluded from reporting for the Annual Real Property Inventory? The following real property assets are excluded from Executive Order 13327 and reporting is optional:
(a)Land easements or rights-of-way held by the Federal Government.
(b)Public domain land (including lands withdrawn for military purposes) or land reserved or dedicated for national forest, national park, or national wildlife refuge purposes, except for improvements on those lands.
(c)Land held in trust or restricted-fee status for individual Indians or Indian tribes.
(d)Land, and interests in land, that are withheld from the scope of Executive Order 13327 by agency heads for reasons of national security, foreign policy or public safety. § 102-84.50 May the GSA Form 1166 be used to report information? No. Agencies must submit information in accordance with the electronic format outlined in the annual reporting instructions by either submitting an XML file in a predetermined format or by entering the data manually into the online Federal Real Property Profile system. For more information on format requirements, or any other information and guidance on the Annual Real Property Inventory, contact GSA's Office of Governmentwide Policy, Office of Real Property (MP), 1800 F Street, NW., Washington, DC 20405, or by telephone at
(202)501-0856. § 102-84.55 When are the Annual Real Property Inventory reports due? You must prepare the Annual Real Property Inventory information prescribed in § 102-84.50 as of the last day of each fiscal year. This information must be submitted electronically to the General Services Administration, Office of Governmentwide Policy, Office of Real Property (MP), 1800 F Street, NW., Washington, DC 20405, no later than December 15 of each year. [FR Doc. E8-439 Filed 1-11-08; 8:45 am] BILLING CODE 6820-RH-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 563 [Docket No. NHTSA-2008-0004] RIN 2127-AK12 Event Data Recorders AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation. ACTION: Final rule; response to petitions for reconsideration. SUMMARY: In August 2006, NHTSA published a final rule specifying uniform requirements for the accuracy, collection, storage, survivability, and retrievability of onboard motor vehicle crash event data in passenger cars and other light vehicles voluntarily equipped with event data recorders (EDRs). The final rule was intended to standardize the data collected through EDRs so that it could be put to the most effective future use. This document responds to several petitions for reconsideration of the August 2006 rule. After carefully considering the issues raised, the agency is granting some aspects of the petitions, and denying some aspects. This document amends the final rule accordingly. DATES: *Effective Date:* The amendments in this rule are effective March 14, 2008. *Compliance Dates:* Except as provided below, light vehicles manufactured on or after September 1, 2012 that are equipped with an EDR and manufacturers of those vehicles must comply with this rule. However, vehicles that are manufactured in two or more stages or that are altered are not required to comply with the rule until September 1, 2013. Voluntary compliance is permitted before that date. *Petitions:* If you wish to submit a petition for reconsideration of this rule, your petition must be received by February 28, 2008. ADDRESSES: Petitions for reconsideration should refer to the docket number and be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building, 4th Floor, Washington, DC 20590. Please see the Privacy Act heading under Regulatory Notices. FOR FURTHER INFORMATION CONTACT: For technical and policy issues, contact David Sutula, Office of Crashworthiness Standards, by telephone at
(202)366-1740, or by fax at
(202)493-2739. For legal issues, contact Rebecca Schade, Office of the Chief Counsel, by telephone at
(202)366-2992, or by fax at
(202)366-3820. Both persons may be reached by mail at the following address: National Highway Traffic Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Summary of Final Rule; Responses to Petitions for Reconsideration II. EDR Background III. Discussion and Analysis of Responses to Petitions for Reconsideration A. Event Data Storage 1. Storage of Multiple Events 2. Event Recording Intervals 3. Reusability of EDRs B. Data Format C. Sensor Accuracy and Range 1. Sensor Accuracy 2. Sensor Range D. Data Survivability and Retrievability E. Required Data Elements 1. Peripheral Sensors 2. Steering Input and Wheel Angle 3. Vehicle Roll Angle Accuracy 4. Data Element Definitions
(a)Definition of Time to Maximum Delta-V Resultant
(b)Clarification of Engine RPM Definitions
(c)Clarification of Readiness Indicator Lamp 5. Whether the Suppression Switch “Auto” Data Element in Table II Should be Retained 6. Whether the “Vehicle Speed Indicated” Data Element in Table III Is Feasible 7. Whether Additional Data Elements Should Be Included F. Lead Time G. Whether NHTSA Should Mandate EDRs H. Public Privacy and Consumer Notification of EDRs 1. Whether NHTSA Should Require a Mechanical Lockout on EDRs 2. Whether NHTSA Should Require EDR Download Tools To Be Standardized at This Time 3. Whether NHTSA Should Require Additional Consumer Notification 4. Whether EDR Data Should Be Included in the FARS System I. Other Technical Revisions J. Summary of Other Letters to the Docket IV. Rulemaking Analyses and Notices V. Regulatory Text I. Summary of the Final Rule; Responses to Petitions for Reconsideration In this document, NHTSA responds to petitions for reconsideration of its August 2006 final rule concerning EDRs. That rule specified uniform requirements for the accuracy, collection, storage, survivability, and retrievability of onboard motor vehicle crash event data in passenger cars and other light vehicles voluntarily equipped with event data recorders (EDRs). We are granting a number of the petitions in part. In granting these petitions, today's final rule makes several changes to the regulatory text of 49 CFR part 563, *Event Data Recorders.* These are largely technical changes, all of which are consistent with agency's goal in the original final rule of limiting the requirements to those necessary to achieve our stated purposes, reflecting current EDR technology, and avoiding unnecessary costs. Changes to the regulatory text are summarized below. We are denying a petition from Public Citizen asking that we require EDRs, include requirements for additional data elements, and increase the stringency of the data survivability requirements. We are also denying a request from Mr. Thomas Kowalick that we require inclusion of a mechanical lockout port to prevent EDR data tampering. Summary of Changes 1. In order to avoid vehicle manufacturers incurring significant additional costs, unintended by the final rule, to redevelop EDR system architectures outside the normal product cycle, § 563.3 is being amended to include a later compliance date. Specifically, the compliance date will generally be September 1, 2012, but September 1, 2013 for vehicles that are manufactured in two or more stages or that are altered after having been previously certified to the FMVSS. This change will also allow the agency to continue to collect data from vehicles with EDRs that do not meet the full requirements of the final rule. 2. To avoid EDR data being filtered beyond usefulness, the agency is removing the Society of Automotive Engineers
(SAE)J211-1 filter class from Table III of § 563.8 and from incorporation by reference in § 563.4. The agency agrees, based on additional information, that current technology EDRs on the market are able to filter data internally, and an additional filtering step is usually unnecessary if not unhelpful. 3. To clarify the final rule more fully, the agency is adding definitions in § 563.5 for “maximum delta-V, resultant” and “time, maximum delta-V, resultant,” and amending the definitions for “end of event time,” “engine RPM,” “event,” and “time zero.” 4. To clarify the definition and permissible uses of the frontal air bag warning lamp, and to clarify that the ignition cycle at time of download need only be reported during the download process, footnotes are being added to Table I in § 563.7. 5. As petitioners pointed out to the agency, the SAE standard on which Part 563 was originally based contained standards for *reporting* rather than *recording* data elements. To avoid requiring EDRs to function at levels well beyond those necessary for the purposes of the final rule, § 563.8 and Table III are being amended to clarify that the format specified is for reported, not recorded, data elements. 6. As written in the final rule, § 563.9 required EDRs to erase recorded data before beginning to record new data of an air bag deployment. This consumes EDR system resources and time, which may be needed to record a closely- following second deployment event, and in long events, the EDR may inappropriately process and prioritize event data. We are amending § 563.9 to allow the EDR to “overwrite” rather than erase previous event data contained in the EDR memory buffers, and to clarify how the EDR should prioritize multiple events and events involving deployable restraint systems other than air bags. II. EDR Background Event data recorders are a rapidly developing technology used in a variety of transportation modes to collect crash information. In motor vehicles, that information aids NHTSA in improving our understanding of crash events and safety system performance. Ideally, it can help manufacturers to develop future safer vehicle designs and NHTSA to develop more effective safety regulations. EDR data will also likely play an increasing role in advancing developing networks for providing emergency medical services, like automatic crash notification
(ACN)and electronic 9-1-1 (e-911). As a technology, EDRs have experienced dramatic changes in the past decade, both in terms of their technical capabilities and their penetration into vehicle fleets. EDRs today demonstrate a range of features: Some systems collect only vehicle acceleration and deceleration data, but others collect these plus additional complementary data, such as driver inputs (like braking and steering) and vehicle system status. NHTSA's challenge has been to encourage broad application of EDR technologies in motor vehicles and maximize the usefulness of EDR data for vehicle designers, researchers, and the medical community, without imposing unnecessary burdens or deterring future improvements to EDRs that have been voluntarily installed. For much more background information on EDR technologies, please see the NPRM and the final rule, at 69 FR 32932 (June 14, 2004) 1 and 71 FR 50998 (August 28, 2006), 2 respectively. 1 Docket No. NHTSA-2004-18029. 2 Docket No. NHTSA-2006-25666. III. Discussion and Analysis of Responses to Petitions for Reconsideration The agency received eight petitions for reconsideration in response to the final rule. Petitions were received from two vehicle manufacturer associations, the Alliance of Automobile Manufacturers (Alliance) and the Association of International Automobile Manufacturers (AIAM); two individual vehicle manufacturers, Nissan and Toyota; a manufacturer of EDR components, Delphi Corporation; the Automotive Occupant Restraints Council (AORC); Public Citizen; and one private citizen, Mr. Thomas M. Kowalick. We note that letters were also received from the American Automobile Association
(AAA)and 433 private citizens. In addition, the agency held ex parte meetings with AORC, the Alliance, Toyota, GM, Hyundai, and Mr. Kowalick. 3 AORC, the Alliance, Toyota, GM, and Mr. Kowalick each explained their concerns and outlined their petitions for reconsideration. Hyundai asked for clarification of the provisions of the rule, but did not submit any information or requests for the agency to consider. 3 NHTSA's records of these meetings are available at Docket No. NHTSA-2006-25666. The petitions and comments expressed concerns with the following general areas of the rule: event storage, data format, sensor accuracy and range, data survivability and retrievability, required data elements, lead time, and public privacy and notification. The sections below examine each topic in turn, discussing the petitions and explaining the agency's response. A. Event Data Storage Petitioners' requests on storage of crash event data in EDRs involved three topics: Data storage in the case of multiple event scenarios, event recording intervals, and reusability of EDRs with “locked” data. 1. Storage of Multiple Events AORC 4 petitioned NHTSA to clarify the “end of event” criteria, arguing that as the final rule was written, the definition of multiple event storage and delta-V “trigger threshold” would allow the EDR to record overlapping or incomplete event data. It further argued that once the end of event criteria is reached, there is no further useful data to obtain. AORC also petitioned NHTSA to redefine the trigger threshold to limit the start of an event to “a 150 ms interval, or the time since the most recent time zero, whichever is shorter,” in order to avoid the EDR capturing non-events. Allowing the EDR to cease recording once the criteria is reached will conserve microprocessor resources, and prevent incomplete recording of subsequent significant events. AORC suggested that this would prevent the accumulation of multiple insignificant events (such as pothole events) that may have a net cumulative delta-V in excess of 8 km/h. 4 Docket No. NHTSA-2006-25666-436. The Alliance 5 petitioned NHTSA to rewrite § 563.9 to clarify the criteria for overwriting data and to address the event data storage criteria for multiple events. The Alliance mentioned three specific concerns with Part 563's data capture provisions. First, the Alliance stated that the language contradicts itself by stating that air bag deployment data must be locked to prevent overwriting by a future event, while also requiring that all previous data be removed from the EDR with the occurrence of either a deployment or a non-deployment event. Second, the Alliance argued that the erasure requirement is not needed—if an EDR has two non-volatile buffers, 6 only one of which is occupied with data from a previous event, the erasure requirement would reduce the amount of useful information held by the EDR and consume crucial processing time to perform. And third, the Alliance requested clarification as to what NHTSA meant by “an air bag deployment crash,” given the existence of other deployable restraints with lower deployment thresholds. 5 Docket No. NHTSA-2006-25666-441. 6 A non-volatile buffer temporarily stores data until the EDR is ready to receive or process it into semi-permanent memory. Many current technology EDRs do have two non-volatile buffers. The Alliance recommended that § 563.9 be re-written as follows: “The EDR must capture and record the data elements for events in accordance with the following conditions and circumstances:
(a)In a frontal or side air bag deployment crash, capture and record the current deployment data, up to two events.
(b)In a deployment event that involves another type of deployable restraint ( *e.g.* , pretensioners, knee bolsters, pedestrian protection, etc.), or in a non-deployment event that meets the trigger threshold, capture and record the current non-deployment data, up to two events, subject to the following conditions:
(1)If an EDR non-volatile memory buffer void of previous-event data is available, the current non-deployment event data is recorded in the buffer.
(2)If an EDR non-volatile memory buffer void of previous event data is not available, the manufacturer may choose to either overwrite the previous non-deployment event data with the current non-deployment event data, or to not record the current non-deployment data.
(3)EDR buffers containing previous deployment-event data must not be overwritten by the current non-deployment event data.” The Alliance argued that this rewrite would clarify the apparent contradiction and ensure that NHTSA would receive the highest-interest event data. Additionally, according to that petition, manufacturers would be able to prioritize the significance of non-deployment event data based on the varying deployment level thresholds for other restraint systems. Toyota 7 supported the Alliance petition. 7 Docket Nos. NHTSA-2006-25666-439 and -447. AIAM 8 argued that although EDRs may be capable of recording multiple events, they may only do so if the external power source and sensors are not damaged in the first event, and petitioned the agency to clarify this. Nissan 9 supported the AIAM petition. 8 Docket No. NHTSA-2006-25666-442. 9 Docket No. NHTSA-2006-25666-448. *Agency response:* We are granting the Alliance's petition to clarify § 563.9, but we are not adopting its definition verbatim. The final rule required EDRs to record only two events. To ensure that air bag deployment events were properly recorded, the agency required that previous data be erased from memory buffers prior to recording the deployment event. The agency adopted the “end of event” definition in SAE J1698-1, *Vehicle Event Data Interface—Output Data Definition* (March 2005) to provide a distinction between when the first event had ended and the second event began. However, the erasure process consumes EDR system resources and time, which may be needed to record a closely-following second deployment event. In addition, during some multiple events, the timing of event triggers may appear to the EDR as one long event. This may cause the EDR to process and prioritize event data inappropriately. To address this problem, we are adopting most of the Alliance's recommended rewrite of § 563.9. The EDR will be permitted to “overwrite” rather than erase previous event data contained in the EDR memory buffers. The revised § 563.9 will also clarify how the EDR must prioritize multiple events and events involving deployable restraint systems other than air bags. Finally, by allowing the EDR to overwrite data, the revision will also address the AORC concerns about multiple event timing and the potential for double buffering (unintentionally recording the same event twice) or recording of insignificant data. We are including a requirement that the data from an air bag deployment event remain locked, 10 in order to discourage tampering. Thus, we are changing § 563.9(a), to read: 10 The meaning of “locked” is discussed below in section A3.
(a)In a frontal or side air bag deployment crash, capture and record the current deployment data, up to two events. *The memory for each air bag deployment event must be locked to prevent any future overwriting of these data* . The revision also addresses AORC's concern about the trigger threshold, because the revised regulatory text permits the EDR algorithm to define on its own when the end of event has occurred. Thus, the EDR could capture the 150 ms pre-event interval in a new memory buffer, while ceasing to record the previous event. In this case, the full set of data from the deployment event would be captured, and the data from the prior event would be contained in a second memory buffer. We agree with AIAM that subsequent events need not be recorded if the external power source and sensors are damaged in the first event, but we do not believe that a change to the regulatory text is necessary. The regulation does not contain test requirements to determine if an EDR could survive two consecutive severe crashes. For the test requirements which are included, if an event is severe enough to interrupt the power source to the EDR, the EDR must be able to finish capturing that event, but is not required to be in a condition such that it could capture subsequent events. 2. Event Recording Intervals AORC petitioned NHTSA to clarify that an air bag deployment is itself a trigger, even in the absence of a delta-V trigger. AORC recommended modifying the definition for “time zero” to account for this, and to modify the definition of “end of event” to allow for both a delta-V end of event and air bag control unit reset. The Alliance also petitioned NHTSA to clarify that an air bag deployment is itself a trigger, and recommended modifying the definition of “time zero” and “event” accordingly. The Alliance argued that a strict reading of the existing “event” definition could preclude a manufacturer from recording cases in which an air bag deploys (due to shock to the vehicle) even though the trigger threshold was not exceeded. In these cases, it would be important to have EDR data to evaluate air bag performance. Toyota supported the Alliance petition and petitioned for clarification of the “end of event” definition. Toyota argued for a “judgment period” of 30 ms to identify the actual end of the event in the case of a crash where the cumulative delta-V hovers near 0.8 km/h. The judgment period would enable the EDR to determine whether a true end of event has occurred, or whether the previous event has simply continued. AIAM stated that the delta-V recording intervals specified in Tables I and II do not agree with the final rule preamble. The maximum delta-V recording intervals in the tables are specified as 0-300 ms, but the preamble stated that NHTSA believed that a 250 ms recording time would be sufficient for 95 percent of the event cases. AIAM urged the agency to reconcile the language. Nissan supported the AIAM petition. *Agency response:* We are granting the petitions to clarify that an air bag deployment may be considered an event trigger by itself. In the final rule, the agency had decided not to adopt a recommendation to tie the trigger threshold to an air bag deployment because we believed that using a set delta-V trigger would better collect the type of information that the agency was most interested in, namely high delta-V crashes irrespective of air bag deployment. We were concerned that tying the trigger threshold to air bag deployment could result in different thresholds depending on manufacturer deployment strategies and vehicle platforms. We agree, however, that EDR data would be valuable in the case of events where an air bag was deployed and the trigger threshold was not met or exceeded. Including a reference to air bag deployment as a trigger by itself, while maintaining the delta-V trigger, is consistent with the agency's intent in the final rule. We are therefore modifying the definitions of “event” and “time zero” as follows: *Event* means a crash or other physical occurrence that causes the trigger threshold to be met or exceeded, or an air bag to be deployed, whichever occurs first. *Time zero* means whichever of the following occurs first:
(a)For systems with “wake-up” air bag control systems, the time at which the occupant restraint control algorithm is activated; or
(b)For continuously running algorithms,
(i)The first point in the interval where a longitudinal cumulative delta-V of over 0.8 km/h (0.5 mph) is reached within a 20 ms time period; or
(ii)For vehicles that record “delta-V, lateral,” the first point in the interval where a lateral cumulative delta-V of over 0.8 km/h (0.5 mph) is reached within a 5 ms time period; or
(c)An air bag deployment. Further, we are granting the petitions to clarify the “end of event” definition to allow the EDR to determine if an actual end of event has occurred. To address the AORC and Toyota requests, we are modifying the definition as follows: *End of event time* means the moment at which the cumulative delta-V within a 20 ms time period becomes 0.8 km/h (0.5 mph) or less, or the moment at which the crash detection algorithm of the air bag control unit resets. 3. Reusability of EDRs AORC petitioned NHTSA to define the term “locked” so that the EDR itself could not overwrite event data, but so that external means could be used to erase data after download. They argued that in some cases, the EDR may be reusable after a deployment event, and allowing data to be erased would facilitate reuse. *Agency response:* We are denying this petition. We do not believe that reuse of the EDR is a sufficient reason to allow its erasure by external means. If we allowed the EDR to be erased by external means, it could encourage development of tools to erase EDR data potentially beneficial to our programs, and would make it difficult to ensure that this feature was not being misused. Although the final rule did not define the term “locked,” we consider it to mean to protect EDR data from changes or deletion. This would include by external means. B. Data Format “Recording” versus “Reporting” data: Several petitioners argued that the title of Table III should be changed from “Recorded Data Format” to “Reported Data Format,” essentially because differences in EDRs may cause them to record data differently, and requiring identical recording capabilities could be more onerous than the agency likely intended. AORC argued that it appears that post processing of data collected from an EDR is allowable, and that the title of Table III should be changed to “Reported Data Format” to clarify this point. Along those lines, AORC petitioned that the “resolution” column in Table III be changed to “Reported Format,” and that NHTSA clarify that the actual sensor resolution may differ from the reported format. The Alliance stated that SAE J1698 and J1698-1 provide guidelines for reporting EDR data, not recording EDR data. In support, the Alliance cited the scope of SAE J1698, which states: This recommended practice aims to establish a common output format of crash-related data recorded and stored within certain electronic components currently installed in many light-duty vehicles. This recommended practice pertains only to the post-download format of such data and is not intended to standardize the format of the data stored within any on-board storage unit, or to standardize the method of data recording, storage, or extraction.” Therefore, the Alliance petitioned that § 563.8(a) be revised to read “The data elements listed in Tables I and II, as applicable, must be reported in accordance with the range, accuracy, resolution, and filter class specified in Table III.” It further requested that the title of Table III be changed to “Reporting Data Element Format.” Toyota supported the Alliance petition. *Agency response:* We are granting these petitions. In the final rule, the agency expressed its intent to specify recording requirements identical to or less stringent than those found in SAE J1698. As the Alliance noted, that standard was intended for the purpose of “reporting” EDR data, not “recording” it. To remedy this oversight in the final rule, we are revising the title of Table III to “Reported Data Element Format,” and revising § 563.8(a) as follows:
(a)The data elements listed in Tables I and II, as applicable, must be reported in accordance with the range, accuracy, and resolution specified in Table III. We are not changing the “resolution” column title as requested by AORC, because the revised Table III title should sufficiently address their concerns. SAE J211-1 Filter Class The AORC petitioned NHTSA to remove the SAE J211-1 Class 60 filter class from the final rule, because it applies to vehicle instrumentation in laboratory tests and may be inconsistent with some of the data collected by EDRs. The Alliance also petitioned to remove the SAE J211-1 filter class from Table III, because component suppliers typically incorporate their own filtering techniques into the acceleration data acquisition hardware, and an additional filtering requirement may cause data processing issues for EDRs. *Agency response:* We are granting these petitions. NHTSA included the SAE J211-1 filter class in the final rule to ease comparison of data collected from EDRs with data collected during agency crash tests. Data filters are used to eliminate noise from sensor signals and extract the useful data. We believed that by specifying the same filter class used during agency crash tests, EDRs would provide information more readily comparable to the data collected by instruments used during our crash tests. It also allowed comparison amongst EDRs from different manufacturers. However, in ex parte meetings with AORC, the Alliance, AIAM, and Toyota, 11 the petitioners presented additional material indicating that current EDRs contain internal filtering capability. Additional filtering of the already-filtered data could remove useful signal content, and could result in attenuation or phase shifting of the data. Based on this information, we are removing the SAE J211-1 filter class requirement from § 563.8(a) and the corresponding column from Table III. 11 *See* Docket No. NHTSA 2006-25666 for the records of these meetings. Requirements for Particular Data Elements The Alliance petitioned NHTSA to revise the resolution requirement in Table III for acceleration data to “the range of the sensor divided by the number of available states in one byte.” In this manner, a 100 g sensor (± 50 g) would have a resolution of 0.39 g (100 g/255). 12 The Alliance argued that the accelerometers required in crash testing (capable of measuring at a 0.01 g resolution) are not of the type employed in EDRs. Such accelerometers would double the EDR memory requirements and increase sensor cost, with no apparent benefit. 12 There are 255 states in one byte of memory. One byte is equal to 2 8
(256)bits. The number of states in each byte is equal to the number of bits minus 1 (256−1 = 255). The Alliance also petitioned NHTSA to revise the recording interval from 250 to 70 ms from time zero, and allow a range of sampling rates from 100 to 500 Hz, to prevent the need for upgraded accelerometers and requisite memory with no added benefit. It argued that some accelerometers sample at rates as low as 100 Hz, compared to the 500 Hz rate specified in Table II, and that many EDRs record acceleration data for only 50-70 ms from time zero, compared to the 250 ms requirement in the final rule. Toyota also recommended that the agency change the time interval for delta-V data to “0-250 ms or 0-End of Event Time plus 30 ms, whichever is shorter.” Likewise, Toyota recommended changing the time interval for maximum delta-V to “0-300 ms or 0-End of Event Time plus 30 ms, whichever is shorter.” AIAM also addressed the issue of the time interval for maximum delta-V data. It argued that the time interval specified in Table III was not in agreement with the preamble, and petitioned that the agency specify in Table III that the maximum delta-V time interval was 0-250 ms. AIAM also stated that the final rule did not provide a method for verifying the format of the data elements, and that it was therefore unclear how the agency intended the accuracy criterion to be applied. AIAM requested that the agency provide a procedure for determining Table III data element accuracy, range, and resolution verification. Nissan 13 supported the AIAM petition with regard to recorded data format, and also recommended that the agency revise the acceleration data element resolution from 0.01 g to 0.5 g. 13 Docket No. NHTSA-2006-25666-448. *Agency response:* We are granting the petitions regarding the resolution capability required for accelerometers in the final rule, because we recognize that current technology accelerometers used in EDRs are not, in fact, able to meet the resolution requirement in Table III. As discussed above, this stems in part from the agency's substituting “Recording” for “Reporting” format in our attempts to align the EDR regulation with the standard industry practice of SAE J1698. The 0.01 g acceleration data resolution specified in Table III would require manufacturers to add additional memory to the EDR and upgrade the accelerometers to laboratory-grade reference accelerometers. 14 Data submitted by the Alliance, 15 AORC, 16 and Toyota 17 indicate that there would be no significant loss in acceleration data quality if accelerometer accuracy and resolution were revised to 0.5 g. Since the agency intended for the EDR rule to have a low cost impact, and since the data quality will not be significantly reduced, we are changing the resolution for acceleration data elements in Table III to 0.5 g. 14 The AORC reported that current air bag control units use 8-10 bit acceleration data resolution, whereas laboratory-grade reference accelerometers use 14-16 bit resolution to achieve a 0.01 g resolution. See Docket No. NHTSA-2006-25666-436. 15 See Docket No. NHTSA-2006-25666-441. 16 See Docket No. NHTSA-2006-25666-436. 17 See Docket No. NHTSA-2006-25666-447. For similar reasons, we are granting the petitions to amend the minimum output for the accelerometer ranges. If acceleration is recorded, it must be included in the EDR output and reported in the minimum format specified in Table III. In meetings with the agency, the Alliance and Toyota argued that the sampling rate was too high for many accelerometers, and would raise EDR manufacturing costs by requiring up to five times the memory storage capacity currently common for EDRs. NHTSA intended to maintain a low cost impact as part of the final rule, but also intended to standardize EDR output data. Consequently, we are amending the minimum data sampling requirements for EDR accelerometer data from 500 Hz to 100 Hz, and are also amending the accelerometer data minimum formats in Table III to reflect the typical acceleration ranges recorded by the accelerometer components. Regarding the issue of maximum delta-V interval times, we are granting the petition to change the data format in Table III to reflect the new time interval changes. NHTSA is adopting Toyota's suggestion of setting the time interval for the delta-V elements as “0-250 ms or 0-End of Event Time plus 30 ms, whichever is shorter,” and for maximum delta-V, “0-300 ms or 0-End of Event Time plus 30 ms, whichever is shorter.” This will also partially address the AIAM concern about the maximum delta-V interval times in Table III. We do not agree that the maximum delta-V interval time need match that of the other delta-V elements, because in some cases, the resultant maximum delta-V may be achieved after the initial 250 ms time interval. However, the revisions allow a shorter time interval for maximum delta-V if the EDR decides that the event has ended and seeks to reset the event time clock. We are denying AIAM's request for a verification method for Table III data elements. The agency will verify the data based on the above revisions to Table III and standard laboratory procedures. Standard laboratory procedures would include instrumentation that is traceable to a standard reference and calibrated to a degree of accuracy that is better than the device being tested to verify that the test device is measuring properly. Therefore, when the EDR data is downloaded, the data from the reference accelerometer would verify that the EDR measured the crash pulse accurately. C. Sensor Accuracy and Range 1. Sensor Accuracy AORC petitioned the agency to widen the tolerance for recorded delta-V and the underlying accelerometers from ±5% to ±8%. It argued that standard accuracy for accelerometers currently utilized for air bag control units ranges from ±5% to ±10%. They further argued that factors such as misalignment and digitization errors contribute to sensor inaccuracy and necessitate the wider sensor tolerance. AIAM also petitioned for a wider tolerance of ±10% for the accelerometer and delta-V data elements. The Alliance and Toyota petitioned the agency to remove the acceleration data elements entirely from the final rule, arguing that such data can be derived from the delta-V and event time data elements. If the agency decided to retain the acceleration data elements, however, the Alliance and Toyota requested that the tolerance for acceleration data and delta-V data be increased to ±10%. Delphi petitioned the agency to eliminate the range and accuracy requirements on all inertially-sensed data elements (e.g., acceleration and angular rate), recommending that the agency instead add data elements that indicate the actual range and accuracy characteristics of the inertial parameters included in the record. The Alliance also petitioned the agency to clarify that accelerometer accuracy is calibrated in comparison with a laboratory grade sensor, and that decreased accelerometer accuracy is allowed in the event of sensor saturation, arguing that accelerometers can lose signal accuracy in certain cases when they experience forces beyond their capability to measure. AORC petitioned that NHTSA specify the temperature conditions when measuring accelerometer accuracy, and that the tolerances apply only within the range of the sensors used in the application and data derived from those signals. Like the Alliance, AORC stated that signals that exceed the range of the sensor may result in clipping of the data, which can affect the overall accuracy of the delta-V calculation. *Agency response:* We are granting the petitions to widen the tolerance on accelerometer and delta-V accuracy, but denying the petitions to remove acceleration data elements from the final rule. In the final rule, the agency noted that acceleration is a common data element collected in engineering studies and crash tests to determine crash severity and the shape of the crash pulse in frontal and rear crashes. Therefore, we believe it is appropriate to standardize acceleration data captured by EDRs. However, error source data submitted after the final rule by the Alliance, AORC, and Toyota 18 indicate that current technology EDR accelerometers have lower accuracies than NHTSA previously believed, near ±10%. If we maintain the requirement in the final rule, costs would be imposed beyond what we had analyzed and intended. For these reasons, we are revising the tolerance for accelerometer accuracy to ±10% in order to accommodate current technology EDR accelerometers. Similarly, because delta-V data is derived from acceleration data, it cannot be more accurate than the acceleration measurements, so we are revising the delta-V tolerance to ±10% as well. 18 *See supra* notes 17-19. We are denying the petitions to modify the final rule to allow additional EDR inaccuracy due to sensor saturation or data clipping. NHTSA recognizes that in certain rare extreme crash scenarios, the crash pulse may exceed the sensor detection capacity and result in data saturation, even in sensors that have been optimized for their given purpose. In these situations, the crash pulse may cause additional reported data inaccuracy or clipping; however, by doubling the tolerance on the accelerometer data, we believe this has been sufficiently addressed. We also believe it is unnecessary to specify how accelerometers should be calibrated. To a certain extent, accelerometers will be calibrated when NHTSA crash tests the vehicle. The reference accelerometer used during the test will indicate whether the accelerations reported by the EDR are within ±10% of the reference accelerometer. Additionally, we believe that the manufacturers' interest in guaranteeing that the delta-V calculation made by the vehicle is accurate will ensure that accelerometers are properly calibrated in the first place. If the acceleration is off by too much, the delta-V calculated may be off and the air bag may not fire at the appropriate time in the crash test. However, because each manufacturer may have a different strategy for placement of sensors and for normalization of the data from those sensors to make a deployment decision, there may be many different ways to achieve that necessary accuracy, and we have no interest in requiring a single method simply for purposes of this rulemaking. 2. Sensor Range AORC petitioned NHTSA to clarify that the ±50 g accelerometer range is a minimum range for post-download data output format only, and to add a footnote to the “Range” column in Table III denoting that actual sensor range may differ from table values for crash performance reasons. It argued that the ±50 g range is too wide for lateral and vertical sensors and too narrow for longitudinal sensors, and requested that NHTSA allow higher range longitudinal accelerometers and narrower range lateral and vertical accelerometers provided that the output format is ±50 g at a minimum. The Alliance also argued that lateral accelerometers used for rollover mitigation and electronic stability control systems do not have the same range as frontal crash accelerometers, and are more likely to be 2 to 5 g full-scale than 50 g. AIAM petitioned NHTSA to allow delta-V calculation errors due to accelerometer data truncation to the ±50 g range, and to specify that the acceleration data element ranges in Table III are minimum ranges. AIAM argued that in certain severe crashes, the longitudinal acceleration component may be higher than the ±50 g range specified in Table III. Thus, in those cases, the acceleration value recorded by the EDR would be truncated at 50 g and the resultant delta-V calculation might not meet the accuracy specified in section 563. AIAM also stated that current EDR designs could include accelerometers with ranges as low as ±30 g to measure some longitudinal and lateral acceleration components, and as low as ±1 g to measure normal (vertical) acceleration components. AIAM petitioned NHTSA to modify the acceleration ranges specified in the final rule to accommodate current EDR designs, and to allow alternative ranges for lateral and vertical accelerometers. Nissan supported the AIAM petition. *Agency response:* As discussed in Section III.B above, we are modifying the specified accelerometer ranges to be “reported” and not “recorded.” We believe this will resolve the concerns expressed by the petitioners. Additionally, based on the comments and agency research, we recognize that the ranges specified for acceleration data elements may not be appropriate for sensors optimized for specific roles. Whereas longitudinal accelerometers may well measure data over the full range of ±50 g, lateral and normal accelerometers might be optimized to measure data over only a fraction of that range, because vehicles simply do not typically experience the kinds of lateral and normal acceleration as they do longitudinal acceleration. To clarify the issue, we are granting the petition to specify that the ranges are reported minimums such that alternative sensing ranges are permitted, and we are specifying minimum reporting ranges of ±5 g for the lateral and normal accelerometer data elements consistent with current technology practices. D. Data Survivability and Retrievability The Alliance argued that for the purpose of determining compliance, NHTSA should clarify in the regulatory text that the EDR is restored to and stabilized at the conditions during the FMVSS No. 208 crash test procedure. Thus, it petitioned the agency to specify environmental conditions for the time period prior to data download for compliance purposes; namely, that the vehicles be kept dry and at a temperature during download that has been maintained at 66—78 °F prior to any read-out being used to assess compliance. AIAM also petitioned that NHTSA specify that vehicles must be stored and protected from extreme environmental conditions (temperature or precipitation) prior to data download during EDR compliance assessment. AIAM argued that although a 10-day data storage requirement is reasonable, a crash test vehicle left unprotected from severe elements for 10 days could experience data loss. Nissan supported the AIAM petition. Public Citizen, on the other hand, reiterated the position it stated in its comments to the NPRM that the agency should specify more extreme survivability requirements for EDR data. It argued that fatal crashes include ones resulting in fires and fluid immersion, and that EDR data from those crashes are essential to NHTSA researchers in fully reconstructing crashes and developing more comprehensive safety standards. Public Citizen also petitioned that NHTSA require EDRs to meet survivability standards for crash events at speeds higher than 50 mph. It argued that the final rule as written neglects higher speed, rear impact, and rollover crash tests. *Agency response:* We are denying the petitions to shelter crashed vehicles to protect them from environmental conditions for the 10-day survivability period, or to stabilize them at room temperature for 24 hours prior to data download for compliance purposes. NHTSA's experience does not indicate that this should be a problem for compliance. We recognize that during the compliance tests, the vehicle glazing components may become damaged and could expose EDR modules to precipitation. However, this routinely happens to vehicles in the real world. Crashed vehicles stored in a tow yard are typically only minimally protected from environmental conditions, yet NHTSA has been successful in downloading data from nearly 5,000 vehicles to date. We believe that the vast majority of EDRs available today can maintain crash data for 10 days after the event despite adverse weather conditions, and are therefore denying these requests. Additionally, we are denying the petitions to increase the survivability requirements to include data retrievability after high-speed (above 50 mph) and extreme fire and fluid immersion crashes. As we stated regarding fire and fluid immersion crashes in the final rule, In the NPRM, 19 we stated that EDR data from such crashes might be useful, but we do not have sufficient information to propose survivability requirements that would address such crashes. We also stated that countermeasures that would ensure the survivability of EDR data in fires might be costly. We have not engaged in research to promulgate survivability requirements for EDR data in these extreme cases. Moreover, we reiterate that the most important benefits of EDR data comes from enabling ACN and composite analysis, and we believe that this final rule will allow researchers to gather sufficient EDR data of statistical significance. We believe that we can meet the objectives of this rulemaking without requiring EDR survivability in extreme crashes. 20 19 69 FR 32943 (Jun. 14, 2004). 20 71 FR 51024 (Aug. 28, 2006). Public Citizen provided no additional data in its petition to contradict our continued belief that the rule as written will allow researchers to gather enough EDR data of statistical significance. As explained, we believe that requiring such extreme survivability is unnecessary given the objectives of this rulemaking. As for high speed crashes, the agency has specified that compliance tests will be conducted in conjunction with FMVSS Nos. 208 and 214, which ensures that reliable information about severe crashes will be preserved while minimizing the rule's potential cost impact. We note that the FMVSS No. 208 crash tests are now performed at speeds of up to 56 km/h (35 mph), which represent the cumulative delta-V for 99% of frontal crashes. 21 21 *See* Docket No. NHTSA-2006-26555-1, at 60. We disagree that the final rule neglects rear impact or rollover crashes. The final rule standardizes lateral acceleration, longitudinal acceleration, and vehicle roll angle data elements recorded by EDRs. We note that many manufacturers are already utilizing rollover sensors as part of their side curtain air bag systems. However, not all manufacturers have rollover systems installed in their fleets, or capture rollover data. Therefore, NHTSA does not believe that it is necessary at this time to require EDRs to record, for example, lateral acceleration or vehicle roll angle, at the risk of increasing the costs associated with installing EDRs in vehicles. As for rear impact crashes, the final rule's definition of trigger threshold uses an absolute value, rather than specifying that deceleration or acceleration should be a trigger. 22 Through vehicle symmetry, longitudinal accelerometers will capture rear impact data the same as frontal impact data. Therefore, we believe that rear impact crashes will be covered just as well as frontal impact crashes. 22 A vehicle will decelerate rapidly in a frontal crash, and accelerate rapidly in a rear-impact crash. E. Required Data Elements 1. Peripheral Sensors AORC petitioned to exclude peripheral sensors from the scope of the final rule. It argued that state-of-the-art EDRs utilize peripheral sensors which may be positioned in the crushable zone of a vehicle and may not survive the entire crash. AORC further argued that it believes the agency intended EDRs to capture “rigid body” data for event reconstruction, and that sensors located in the crushable zones of vehicles may not meet the requirements of the final rule. The Alliance also petitioned to exclude satellite sensors from the scope of the final rule. It stated that satellite sensors may be optimized for functions unrelated to EDRs and crash investigations, and have ranges and tolerances that are radically different than those specified in the final rule. The Alliance argued that accelerometers located in the air bag control modules, closer to the vehicle center of gravity, provide a more accurate indication of actual rigid-body acceleration. Delphi expressed concern that some data elements in Table I 23 may not be available to the EDR in vehicles with functionally independent, non-interconnected subsystems in severe crash scenarios. Delphi suggested that manufacturers may not include EDRs in vehicles if they are required to record these data elements. Therefore, Delphi petitioned NHTSA to consider an exception to certain Table I elements if those data sets are not available to the EDR. 23 *E.g.,* vehicle speed indicated, % engine throttle, and service brake indicator. *Agency response:* We are granting the petitions with regard to satellite or peripheral sensors, although we believe it is unnecessary to change the regulatory text to make this clarification. In the final rule, the agency expressed its intent for the EDR to capture the rigid body motion of vehicles in crashes. As the petitioners noted, the rigid body motion is best captured by collecting data centrally located in the occupant compartment of the vehicle. Data from satellite or peripheral sensors are not used for these purposes, but rather help the air bag control module and other occupant protection systems to perform optimally. We recognize that sensors located in vehicles' crushable zones may not meet the survivability standards set forth in the final rule, and therefore exclude them from those standards. However, we are denying Delphi's petition to exempt data elements from Table I if those data sets are not available to the EDR. While NHTSA recognizes that it may save EDR development costs to utilize sensor systems currently in place, we believe that the EDR should be capable of recording data from these systems for the interval times specified in the final rule. The sensor systems identified by Delphi as examples of “functionally independent, non-interconnected subsystems” are all data elements of primary interest to NHTSA in determining the pre-crash conditions, and therefore would likely still be available to the EDR. Further, the agency believes that the crash scenarios in which these systems may become disconnected, and thus no longer available to the EDR, would involve extremely severe or rare conditions that are not of interest to the agency at this time for practical reasons. The compliance test procedures specified in the final rule do not recreate such extreme conditions, so data from these subsystems would still be available for compliance purposes. 2. Steering Input and Wheel Angle AORC stated that the “steering input” data element in Table II appears to be equivalent to the “steering wheel angle” data element in Table III. AORC additionally petitioned that NHTSA specify that Table II steering input and wheel angle tolerance values are minimums, and that there is no need to truncate the data to fit the Table III format. AORC also requested that the Table III accuracy for steering wheel angle be changed to a percent of the full scale rather than a fixed angle tolerance. *Agency response:* We are granting these requests as technical amendments. When the final rule was drafted, NHTSA believed that the steering angle during an event would rarely exceed ±250 degrees from the normal position. AORC explained in subsequent meetings that state-of-the-art EDRs in fact report steering wheel accuracy in terms of a percent of the full scale, and that there is therefore no need to limit the steering input data element to the ±250 degree range. Changing the format of how the steering input data is reported is simply a technical change, and will not substantively change the type of data collected for the agency's research purposes. This response to petitions changes the steering wheel angle accuracy in Table III from ±5 degrees to ±5 percent, and changes the resolution from 5 degrees to 1 percent. The steering input data element of Table II has also been specified under minimum conditions. Additionally, we agree that the terms steering input and steering wheel angle refer to the same thing, and are changing “steering wheel angle” in Table III to “steering input” for purposes of consistency. 3. Vehicle Roll Angle Accuracy AORC argued that the typical accuracy for state-of-the-art roll angle sensors is about 7%, and petitioned that the agency measure that accuracy as a percent of the full sensor range rather than as a fixed roll angle. AORC further requested that the EDR should only be required to store the roll angle data element up to the deployment of the air bag, and that the accuracy requirement only apply within the range of the sensors used in the application and at room temperature. *Agency response:* We are granting the petition with regard to roll angle accuracy being measured as a percent of the full sensor range, but denying the request that the EDR should only be required to store roll angle data up to the deployment of the air bag and that the accuracy need only apply at room temperature. As discussed above, we are revising the acceleration accuracies in Table III to ±10%. We believe that the inertial sensors utilized in roll angle sensor systems will exhibit similar accuracy traits, and should be measured as a percent of the full range of the sensor. We believe there is no need to limit collection of roll angle sensor data to the time interval prior to air bag deployment. As footnoted in Table II, the recording interval is a suggested period only. This is because the agency recognized the potential for misalignment of sensors and consequent loss of accuracy due to vehicle damage during a rollover event. NHTSA would not consider it non-compliant if an EDR was unable to collect roll angle sensor data for the full recording interval; therefore, an additional limit to the recording interval is not necessary. 4. Data Element Definitions
(a)Definition of Time to Maximum Delta-V Resultant AORC stated that it believes that the “resultant” maximum delta-V means the magnitude of the vector-added longitudinal and lateral maximum delta-V, and that this value can be processed during the data downloading procedure. AORC petitioned NHTSA to define “Time, Max Delta-V Resultant” in § 563.5. *Agency response:* We are granting the petition to define “Time, Maximum Delta-V Resultant,” and are also defining “Maximum Delta-V Resultant” for clarification. These changes clarify the regulatory text and are technical in nature, having no effect on the substantive requirements of the rule. The new definitions will be added to § 563.5 as follows: *Maximum delta-V, resultant* means the time-correlated maximum value of the cumulative change in velocity, as recorded by the EDR or processed during data download, along the vector-added longitudinal and lateral axes. *Time, maximum delta-V resultant* means the time from crash time zero to the point where the maximum delta-V resultant occurs, as recorded by the EDR or processed during data download.
(b)Clarification of Engine RPM Definitions The Alliance petitioned the agency to revise the Engine RPM definition to include hybrid vehicles with one or more drive systems. It recommended that the measurement point be moved to the point of entry to the transmission gearbox. *Agency response:* We are granting this petition for clarity's sake. For hybrid and other vehicles not entirely powered by internal combustion engines, when the vehicle is running on a power system other than the internal combustion engine, the engine RPM data element would not be utilized. However, as the Alliance noted, the operating speed of the engine or motor of a hybrid vehicle could be measured from the transmission. This clarification is technical in nature and will have no effect on the substantive requirements of the final rule. NHTSA is redefining engine RPM as follows: *Engine RPM* means, for vehicles powered by internal combustion engines, the number of revolutions per minute of the main crankshaft of the vehicle's engine, and for vehicles not entirely powered by internal combustion engines, the number of revolutions per minute of the motor shaft at the point at which it enters the vehicle transmission gearbox. Additionally, since some electric and fuel cell vehicles may not have transmissions at all, for these vehicles, we believe it would be appropriate for the EDR to record output of the vehicle power plant. We do not plan to address this in the regulatory text until a significant number of these vehicles are produced.
(c)Clarification of Readiness Indicator Lamp The Alliance petitioned NHTSA to either delete the Table I data element “frontal air bag warning lamp” or change that data element to “Readiness Indicator Lamp.” It suggested that the readiness indicator lamp as described in FMVSS No. 208 (S4.5.2) is the data element that NHTSA intended for EDRs to record. The Alliance argued that the name should be changed for accuracy's sake, since the readiness indicator may illuminate to indicate a malfunction in many parts of the restraint system besides the frontal air bag, including the seat belt pretensioners, the passenger seat weight sensors, the side impact sensors, the curtain air bag modules, and so forth. AIAM also petitioned to clarify that the “readiness indicator” referred to the indicator specified in S4.5.2 of FMVSS No. 208. It recommended that the EDR record the status of the safety system as a whole, and not simply whether or not the readiness indicator lamp is illuminated. AIAM further petitioned that NHTSA confirm that the EDR may record additional safety system readiness information, such as the state of side air bag systems. Nissan supported the AIAM petition. *Agency response:* We are granting the petitions on this issue in part. In its meeting with the agency, the Alliance reported that the readiness indicator may also illuminate to indicate a malfunction in the restraint system other than a frontal air bag. For example, the indicator may illuminate if a malfunction is detected in a side curtain air bag, or in a deployable seat belt pretensioner. The agency did not intend to require by the final rule that readiness indicator lamps be used only for the frontal air bag; we agree that it may also indicate malfunctions in other parts of the restraint system. 24 We are adding a clarifying footnote to Table I corresponding to “Frontal air bag warning lamp, on/off” as follows: 24 We have previously confirmed this by interpretation. See Letter to Michael Love, Porsche Cars North America, Inc., Jul. 30, 1996. *Available at http://isearch.nhtsa.gov/files/PORSCH3.wpd.html* (last accessed Oct. 5, 2007). 2 The frontal air bag warning lamp is the readiness indicator specified in S4.5.2 of FMVSS No. 208. 5. Whether the Suppression Switch “Auto” Data Element in Table II Should Be Retained The Alliance petitioned NHTSA to remove the frontal air bag suppression switch “auto” data element from Table II. It argued that the air bag system can be deactivated through numerous methods, and is either on or off at the time of the event ( *i.e.,* it would not be “auto”). The Alliance stated that an EDR that records “auto” would not seem to answer an end-user inquiry as to why an air bag did or did not deploy. *Agency response:* We are denying this petition. Recording the position of the air bag suppression switch, even if it is in the “auto” position, may help the agency in determining whether advanced air bag systems with automatic suppression systems are performing properly. Given that this falls within the scope of the rulemaking's intent, we are not granting this petition. For clarity, we are also making a technical correction to Table III to reflect that the “auto” option in the reported data element format be for the frontal air bag suppression switch status. 6. Whether the “Vehicle Speed Indicated” Data Element in Table III Is Feasible AIAM petitioned NHTSA to revise the vehicle speed data element accuracy to ±10 km/h, arguing that the listed accuracy requirement in Table III of the final rule is not feasible. However, AIAM suggested that if the agency's intent was to specify a ±1 km/h resolution for data reporting purposes only, the data element would not be problematic. Nissan supported the AIAM petition. *Agency response:* We are denying this petition. While variations in tire and rim sizes may introduce additional inaccuracy in the vehicle speed indicated, we do not believe that the indicated speed will have an inaccuracy as high as ±10 km/h (approximately ±6 mph) outside of wheel slippage due to road surface conditions. However, we agree with the petitioner that the agency's intent was to specify a ±1 km/h resolution for data reporting purposes only. Since revisions are already being made to the title of Table III and to § 563.8(a) to specify that the data element formats are reporting, not recording formats, we are not changing the “vehicle speed indicated” data element. 7. Whether Additional Data Elements Should Be Included Public Citizen noted that the number of required data elements in the final rule was reduced from the number in the NPRM, and reiterated its position stated in its comments to the NPRM that NHTSA should include more required data elements for EDRs. Specifically, Public Citizen requested that NHTSA reconsider data elements listed by the NHTSA-sponsored EDR working group and an IEEE EDR case report. It also cited VIN, crash location, and a date/time stamp data element as elements missing from the agency's final rule. *Agency response:* We are denying this petition. We note that the agency discussed at length in the final rule the reasons for its inclusion/exclusion of various data elements, including the ones cited by Public Citizen. See 71 FR at 51011-51016. We continue to believe that the additional elements cited by Public Citizen are not needed for the agency's basic goals for this rulemaking, including crash reconstruction purposes. We note that the vehicle VIN does not need to be a required data element, since that information is already required to download data from the EDR. 25 The crash location, date and time need not be required elements, since they are included in accident investigation reports. Also, if crash location was required, installation of global positioning sensors would be needed, drastically increasing the costs of EDRs contrary to the agency's intent in this rulemaking. As for our denial of Public Citizen's petition to include all of the data elements listed in the IEEE report, Public Citizen provided no new information or arguments on this subject in its petition for reconsideration than it provided in its comments to the NPRM. In the final rule, we explained that the IEEE data element list was more like a “data dictionary” than a list of actually recommended data elements to be recorded. Requiring all of the IEEE-listed data elements would result in redundancy and the unnecessary standardization of many data elements that are unrelated to the purposes of this rulemaking. 25 Similar EDR architecture may be used for different models in a manufacturer's line of vehicles. The VIN must be inputted so that the EDR software can know what vehicle model it is installed in, so that it can interpret the data it has recorded in light of the specific parameters of the vehicle model. F. Lead Time The Alliance petitioned NHTSA to change the compliance date set of the final rule. It argued that the final rule will likely require manufacturers to redesign EDRs and electrical architectures in virtually all vehicles covered by the regulation, and that it is impractical to implement these product changes across the entire fleet of vehicles by the September 1, 2010 compliance date. The Alliance instead recommended that the agency either delay the effective date or implement a phase-in schedule. It recommended a phase-in schedule of 25% for MY 2011, 50% for MY 2012, 75% for MY 2013, and 100% compliance thereafter. AIAM also argued that significant redesigns may be required for manufacturers to comply with the final rule, and requested a later compliance date. It recommended a phase-in schedule of 50% for MY 2011, 80% for MY 2012, and 100% for MY 2013, with advance credits for early adoption. *Agency response:* At the time of the final rule, we believed that the September 1, 2010 effective date would have little impact on the manufacturers. We note that much of the EDR data available to the agency has been from GM vehicles, and that there are few differences between the data sets collected from those vehicles and the minimum requirements of the final rule. However, in connection with the petitions for reconsideration, manufacturers have submitted information that even with the reduced number of required data elements included in the final rule, industry will still need to make architecture changes that will extend the lead time beyond September 1, 2010 for new EDRs that comply with the final rule. 26 Because of supply chain constraints, and the three to four year development times needed to install EDRs in a vehicle model production run, 27 the EDRs for vehicle model years 2007 through 2010 have already been finalized and cannot be changed without incurring major redevelopment costs. Specifically, significant changes will be needed to EDR data bus architecture for the industry to be able to comply with the final rule. Some manufacturers reported that they may need to redesign the air bag control module, while some reported that new EDR hardware architectures needed to be developed. We believe that these changes, if necessary, would require manufacturers to recertify their air bag systems, which would require them to invest in development and testing outside of the normal vehicle model run. 26 Specifically, AORC, the Alliance, Toyota, and GM. 27 During the May 15, 2007 SAE Government/Industry Workshop, Ford representatives indicated that development times for EDRs precede vehicle model introductions by at least 3 years. We agree that a delay in the rule is needed to prevent manufacturers from incurring significant redesign costs for EDRs. We do not want the final rule to inhibit manufacturers from continuing to include EDRs (in whatever form) in their vehicles between now and the effective date of the final rule. Therefore, we are granting the petitions to delay the effective date until September 1, 2012. We are not granting the petitions with respect to the requests for a phase-in, because we believe that a fixed date of 2012 will be sufficient for manufacturers' needs. For the same reason, and because manufacturers indicated that 2012 would be sufficient, we are not granting the petition for an effective date of September 1, 2013. NHTSA believes that the additional two years will both allow the manufacturers time to implement the necessary EDR and air bag architecture changes during the normal model development cycles, and the agency to continue to collect data from vehicles with EDRs that do not meet the full requirements of the final rule, specifically, from manufacturers who are farther from meeting the rule than GM. Moreover, by delaying the effective date of the final rule, the agency will have a better chance of collecting more complete data from EDRs installed in vehicles, since manufacturers can implement some minor changes to the EDR functions in preparation for compliance with the final rule. G. Whether NHTSA Should Mandate EDRs Public Citizen reiterated its position from its comments to the NPRM and petitioned NHTSA to mandate EDR installation for all vehicles instead of establishing requirements for voluntarily installed EDRs. It argued that the safety benefits of EDRs far outweigh the financial burden manufacturers would incur with a fleet-wide mandate, and that manufacturers will seek relief from the requirements by not equipping their vehicles with EDRs. Public Citizen further stated that gaps in accident reconstruction knowledge would compromise the agency's ability to draw conclusions from EDR data, and that a mandate for EDRs on all vehicles would avoid those gaps. *Agency Response:* NHTSA carefully considered Public Citizen's petition that we mandate installation of EDRs. Public Citizen provided no new information in their petition for reconsideration of the final rule that had not already been provided in their comments to the NPRM. We did not mandate installation of EDRs in new motor vehicles in the final rule, and discussed extensively our reasoning for our decision not to mandate the installation of EDRs in motor vehicles at this time. See 71 FR 51010-11 (Aug. 28, 2006) for a complete discussion of this issue. In summary, although we chose not to mandate EDRs, we recognize the benefits of EDRs in vehicles, and the final rule intends to capture those benefits by helping the agency gather EDR information and building the foundation for ACN. As explained in the final rule, given the current level of voluntary EDR installation, and the expected increases in the extent of voluntary installation, we continue to believe that EDRs will yield data of statistical significance even without being mandated. Further, manufacturers benefit from having EDRs in their vehicles as well—they collect information on how their vehicles and equipment are performing just as NHTSA does. We believe that this benefit to manufacturers will help keep EDRs in vehicles, as evidenced by the fact that the marketplace appears to be adopting more, not fewer, EDRs. Therefore, we are denying Public Citizen's petition to mandate installation of EDRs in all new vehicles. H. Public Privacy and Consumer Notification of EDRs 1. Whether NHTSA Should Require a Mechanical Lockout on EDRs Mr. Thomas Kowalick petitioned NHTSA to require a mechanical lockout on the on-board diagnostic
(OBD2)port 28 for the sole use/control of the owner or operator of the vehicle equipped with an EDR. Mr. Kowalick argued that it is possible to protect consumer privacy rights by use of a mechanical lockout system on this port, which is used to download EDR data. In a March 1, 2007 meeting with NHTSA, Mr. Kowalick expressed an additional concern that aftermarket devices are being developed to erase or tamper with EDR data. 29 He noted that the preamble to the final rule stated that if tampering became apparent, NHTSA would reconsider its position on this issue. 28 *See* 61 FR 40940. The OBD2 port standard specifies the type of diagnostic connector and its output pin locations used for monitoring vehicle parameters measured by the on-board computer(s) such as emissions controls. It is typically located on the driver's side of the passenger compartment near the center console. 29 Docket No. NHTSA-2006-25666-457. *Agency response:* We are denying this petition. Mr. Kowalick provided information that devices may exist to erase or tamper with EDR data, but he did not provide information that they were actually being used. There are several other ways that EDR tampering will be prevented. First, the EDR download port is installed inside the vehicle, on which the door locks act as a first line of defense to prevent access to the data port. Second, if the vehicle glazing is missing, either due to an accident or forceful entry (assuming a person wants to tamper with someone else's EDR data), the vehicle key is needed to power the vehicle to access the EDR data through the diagnostic port. And third, the final rule requires that event data from crashes in which an air bag has been deployed must be locked and cannot be overwritten. As stated in the final rule, the agency may revisit the issue if EDR tampering indeed becomes a problem. 2. Whether NHTSA Should Require EDR Download Tools To Be Standardized at This Time Public Citizen petitioned NHTSA to require manufacturers to produce a standardized tool for downloading of EDR data by first responders. It argued that requiring a standardized download tool, rather than simply making a tool available within 90 days of the first sale of vehicles equipped with EDRs, will help reduce costs for emergency personnel and law enforcement officials and prevent manufacturers from providing tools that only download the bare minimum of EDR data. It further argued that without a standardized download tool, manufacturers will be able to maintain sole ownership of the only tools that gain access to all of an EDR's recorded data and “cover up” data on defect trends by preventing NHTSA, first responders, crash investigators, and other safety researchers from gaining access to valuable safety data. *Agency response:* We are denying this petition. NHTSA has carefully considered the petitioner's comments, and believes that there is not a need to require a single standardized tool at this time. As we stated in the final rule, we expect that tools would be available for several years after the vehicle has been sold, and that newer versions of the download tools would be “backward-compatible.” We note that this trend has held true, but believe that the download tools required to read EDRs will become more complex for a period of time as manufacturers increasingly offer EDRs in their vehicle fleets, and develop existing EDRs to meet this rule. We are continuing to monitor the progress of voluntarily installed EDRs and note that the manufacturers are already working toward a standardized set of downloading tools. We believe that once this standard becomes effective, the downloading process for EDRs will become less complex, and the tools will become easier to use and less expensive. Thus far EDR downloads have provided the information necessary for the agency to accomplish our research and enforcement objectives without the requirement of a standardized download tool. However, if this trend does not continue and download tools become so expensive that the collection of EDR data by NHTSA, first responders, crash investigators, and other safety researchers is hampered by the cost of the tools, the agency will consider taking appropriate action to address the problem. Since there is no evidence that the absence of a standardized download tool is hampering the usefulness of current EDRs, we are denying the petitioner's request. 3. Whether NHTSA Should Require Additional Consumer Notification Public Citizen petitioned NHTSA to require vehicles equipped with EDRs to have window stickers or labels at the point of sale. It argued that the final rule's requirement for an owner's manual statement regarding the presence and functioning of the EDR is insufficient, because many people do not read the owner's manual before purchasing the vehicle. Additionally, Public Citizen petitioned NHTSA to require consumers to be handed a one-page document with a message similar to the statement in the owner's manual before purchasing the vehicle that notifies them of the presence of the EDR and describes its purpose and capabilities. *Agency response:* We are denying these requests. The purpose of the specified statement in the owner's manual is to make the operator aware of the presence, function, and capabilities of the EDR. We believe that a statement in the owner's manual is sufficient for that purpose. The owner's manual is used to provide operators with a variety of types of important information concerning the vehicle, and we believe that there is nothing about the nature of EDRs to necessitate such information to be provided in other locations. We also note that putting this information on a window sticker would tend to dilute the effect of the other information that is already there, such as NHTSA's vehicle safety ratings. 4. Whether EDR Data Should Be Included in the FARS System Public Citizen asked in its petition that NHTSA include EDR data in the Fatality Analysis Reporting System (FARS), and ensure that a system is in place for all first responders to download and forward data to NHTSA for analysis and inclusion in research databases. It stated that data analysis and presentation are critical to reaping the maximum benefit from EDR data. Public Citizen also recommended that NHTSA should additionally create a new database solely for EDR data to help corroborate conclusions drawn from other databases, and a system in partnership with law enforcement officials to ensure that all available EDR data is retrieved following a crash and sent to the agency for analysis. *Agency response:* We appreciate Public Citizen's suggestions but note that the specific ways in which NHTSA may utilize EDR data in its programs is not within the scope of this rulemaking. The current system that NHTSA has been utilizing to integrate EDR data into research and analysis efforts has proven to be most adequate thus far. As the agency maintains and further develops its various safety programs, it will continue to consider ways in which EDR data may be able to be used to improve them. I. Other Technical Revisions On April 6, 2007, the agency published a final rule establishing FMVSS No. 126, “Electronic stability control systems,” which set performance and equipment requirements for electronic stability control
(ESC)systems. As a technical correction, we are amending the definition of “stability control” in § 563.5 to read “means any device that complies with FMVSS No. 126, “Electronic stability control systems.” J. Summary of Other Letters to the Docket The American Automobile Association
(AAA)stated that although some states are requiring manufacturers to notify consumers in the vehicle's owner's manual of the presence and functioning of the EDR, under the final rule it may take as long as four years for the notice requirements to transition to the remaining states. It urged the agency to work with manufacturers to include the owner's manual notice as part of the routine schedule of updating and revising the owner's manual. In response, we note that we have reviewed many owners' manuals as part of this rulemaking. We have found that many have been updated to reflect the fact that EDRs are included on vehicles. NHTSA also received and reviewed submissions from more than 400 private citizens expressing various concerns, including a belief in some cases that the agency was mandating EDRs and that consumer privacy would not be protected. However, the letters did not generally address the discussions provided by the agency in the final rule concerning privacy and other relevant issues. Moreover, the final rule does not mandate the installation of EDRs but instead standardizes the format of data collected from EDRs voluntarily installed in vehicles. IV. Rulemaking Analyses and Notices This rule makes several technical changes to the regulatory text of 49 CFR Part 563, and does not increase the regulatory burden of manufacturers. The agency has discussed the relevant requirements of the Vehicle Safety Act, Executive Order 12866, the Department of Transportation's regulatory policies and procedures, the Regulatory Flexibility Act, Executive Order 13132 (Federalism), Executive Order 12988 (Civil Justice Reform), Executive Order 13045 (Protection of Children from Health and Safety Risks), the Paperwork Reduction Act, the National Technology Transfer and Advancement Act, Unfunded Mandates Reform Act, and the National Environmental Policy Act in the August 2006 final rule cited above. Those discussions are not affected by these technical changes. Privacy Act Please note that anyone is able to search the electronic form of all documents received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit *http://www.dot.gov/privacy.html.* V. Regulatory Text List of Subjects in 49 CFR Part 563 Motor vehicle safety, Motor vehicles, Reporting and recordkeeping requirements. In consideration of the foregoing, Part 563 is amended as follows: PART 563—EVENT DATA RECORDERS 1. The authority citation for Part 563 continues to read as follows: Authority: 49 U.S.C. 322, 30101, 30111, 30115, 30117, 30166, 30168; delegation of authority at 49 CFR 1.50. 2. Revise § 563.3 to read as follows: § 563.3 Application. This part applies to the following vehicles manufactured on or after September 1, 2012, if they are equipped with an event data recorder: passenger cars, multipurpose passenger vehicles, trucks, and buses with a GVWR of 3,855 kg (8,500 pounds) or less and an unloaded vehicle weight of 2,495 kg (5,500 pounds) or less, except for walk-in van-type trucks or vehicles designed to be sold exclusively to the U.S. Postal Service. This part also applies to manufacturers of those vehicles. However, vehicles manufactured before September 1, 2013 that are manufactured in two or more stages or that are altered (within the meaning of 49 CFR 567.7) after having been previously certified to the Federal motor vehicle safety standards in accordance with Part 567 of this chapter need not meet the requirements of this part. § 563.4 [Removed] 3. Remove and reserve § 563.4 to read as follows: 4. Revise § 563.5 to read as follows: § 563.5 Definitions.
(a)*Motor vehicle safety standard definitions.* Unless otherwise indicated, all terms that are used in this part and are defined in the Motor Vehicle Safety Standards, Part 571 of this subchapter, are used as defined therein.
(b)*Other definitions.* *ABS activity* means the anti-lock brake system
(ABS)is actively controlling the vehicle's brakes. *Air bag warning lamp status* means whether the warning lamp required by FMVSS No. 208 is on or off. *Capture* means the process of buffering EDR data in a temporary, volatile storage medium where it is continuously updated at regular time intervals. *Delta-V, lateral* means the cumulative change in velocity, as recorded by the EDR of the vehicle, along the lateral axis, starting from crash time zero and ending at 0.25 seconds, recorded every 0.01 seconds. *Delta-V, longitudinal* means the cumulative change in velocity, as recorded by the EDR of the vehicle, along the longitudinal axis, starting from crash time zero and ending at 0.25 seconds, recorded every 0.01 seconds. *Deployment time, frontal air bag* means (for both driver and right front passenger) the elapsed time from crash time zero to the deployment command, or for multi-staged air bag systems, the deployment command for the first stage. *Disposal* means the deployment command of the second (or higher, if present) stage of a frontal air bag for the purpose of disposing the propellant from the air bag device. *End of event time* means the moment at which the cumulative delta-V within a 20 ms time period becomes 0.8 km/h (0.5 mph) or less, or the moment at which the crash detection algorithm of the air bag control unit resets. *Engine RPM* means
(1)For vehicles powered by internal combustion engines, the number of revolutions per minute of the main crankshaft of the vehicle's engine; and
(2)For vehicles not entirely powered by internal combustion engines, the number of revolutions per minute of the motor shaft at the point at which it enters the vehicle transmission gearbox. *Engine throttle, percent full* means the driver-requested acceleration as measured by the throttle position sensor on the accelerator pedal compared to the fully-depressed position. *Event* means a crash or other physical occurrence that causes the trigger threshold to be met or exceeded, or an air bag to be deployed, whichever occurs first. *Event data recorder (EDR)* means a device or function in a vehicle that records the vehicle's dynamic time-series data during the time period just prior to a crash event (e.g., vehicle speed vs. time) or during a crash event (e.g., delta-V vs. time), intended for retrieval after the crash event. For the purposes of this definition, the event data do not include audio and video data. *Frontal air bag* means an inflatable restraint system that requires no action by vehicle occupants and is used to meet the applicable frontal crash protection requirements of FMVSS No. 208. *Ignition cycle, crash* means the number (count) of power cycles applied to the recording device at the time when the crash event occurred since the first use of the EDR. *Ignition cycle download* means the number (count) of power cycles applied to the recording device at the time when the data was downloaded since the first use of the EDR. *Lateral acceleration* means the component of the vector acceleration of a point in the vehicle in the y-direction. The lateral acceleration is positive from left to right, from the perspective of the driver when seated in the vehicle facing the direction of forward vehicle travel. *Longitudinal acceleration* means the component of the vector acceleration of a point in the vehicle in the x-direction. The longitudinal acceleration is positive in the direction of forward vehicle travel. *Maximum delta-V, lateral* means the maximum value of the cumulative change in velocity, as recorded by the EDR, of the vehicle along the lateral axis, starting from crash time zero and ending at 0.3 seconds. *Maximum delta-V, longitudinal* means the maximum value of the cumulative change in velocity, as recorded by the EDR, of the vehicle along the longitudinal axis, starting from crash time zero and ending at 0.3 seconds. *Maximum delta-V, resultant* means the time-correlated maximum value of the cumulative change in velocity, as recorded by the EDR or processed during data download, along the vector-added longitudinal and lateral axes. *Multi-event crash* means the occurrence of 2 events, the first and last of which begin not more than 5 seconds apart. *Non-volatile memory* means the memory reserved for maintaining recorded EDR data in a semi-permanent fashion. Data recorded in non-volatile memory is retained after loss of power and can be retrieved with EDR data extraction tools and methods. *Normal acceleration* means the component of the vector acceleration of a point in the vehicle in the z-direction. The normal acceleration is positive in a downward direction and is zero when the accelerometer is at rest. *Occupant position classification* means the classification indicating that the seating posture of a front outboard occupant (both driver and right front passenger) is determined as being out-of-position. *Occupant size classification* means, for the right front passenger, the classification of the occupant as an adult and not as a child, and for the driver, the classification of the driver as not being of small stature. *Pretensioner* means a device that is activated by a vehicle's crash sensing system and removes slack from a vehicle safety belt system. *Record* means the process of saving captured EDR data into a non-volatile device for subsequent retrieval. *Safety belt status* means the feedback from the safety system that is used to determine that an occupant's safety belt (for both driver and right front passenger) is fastened or unfastened. *Seat track position switch, foremost, status* means the status of the switch that is installed to detect whether the seat is moved to a forward position. *Service brake, on and off* means the status of the device that is installed in or connected to the brake pedal system to detect whether the pedal was pressed. The device can include the brake pedal switch or other driver-operated service brake control. *Side air bag* means any inflatable occupant restraint device that is mounted to the seat or side structure of the vehicle interior, and that is designed to deploy in a side impact crash to help mitigate occupant injury and/or ejection. *Side curtain/tube air bag* means any inflatable occupant restraint device that is mounted to the side structure of the vehicle interior, and that is designed to deploy in a side impact crash or rollover and to help mitigate occupant injury and/or ejection. *Speed, vehicle indicated* means the vehicle speed indicated by a manufacturer-designated subsystem designed to indicate the vehicle's ground travel speed during vehicle operation. *Stability control* means any device that complies with FMVSS No. 126, “Electronic stability control systems.” *Steering input* means the angular displacement of the steering wheel measured from the straight-ahead position (position corresponding to zero average steer angle of a pair of steered wheels). *Suppression switch status* means the status of the switch indicating whether an air bag suppression system is on or off. *Time from event 1 to 2* means the elapsed time from time zero of the first event to time zero of the second event. *Time, maximum delta-V, lateral* means the time from crash time zero to the point where the maximum value of the cumulative change in velocity is found, as recorded by the EDR, along the lateral axis. *Time, maximum delta-V, longitudinal* means the time from crash time zero to the point where the maximum value of the cumulative change in velocity is found, as recorded by the EDR, along the longitudinal axis. *Time, maximum delta-V, resultant* means the time from crash time zero to the point where the maximum delta-V resultant occurs, as recorded by the EDR or processed during data download. *Time to deploy, pretensioner* means the elapsed time from crash time zero to the deployment command for the safety belt pretensioner (for both driver and right front passenger). *Time to deploy, side air bag/curtain* means the elapsed time from crash time zero to the deployment command for a side air bag or a side curtain/tube air bag (for both driver and right front passenger). *Time to first stage* means the elapsed time between time zero and the time when the first stage of a frontal air bag is commanded to fire. * Time to n th stage * means the elapsed time from crash time zero to the deployment command for the nth stage of a frontal air bag (for both driver and right front passenger). *Time zero* means whichever of the following occurs first:
(1)For systems with “wake-up” air bag control systems, the time at which the occupant restraint control algorithm is activated; or
(2)For continuously running algorithms,
(i)The first point in the interval where a longitudinal cumulative delta-V of over 0.8 km/h (0.5 mph) is reached within a 20 ms time period; or
(ii)For vehicles that record “delta-V, lateral,” the first point in the interval where a lateral cumulative delta-V of over 0.8 km/h (0.5 mph) is reached within a 5 ms time period; or
(3)An air bag deployment. *Trigger threshold* means a change in vehicle velocity, in the longitudinal direction, that equals or exceeds 8 km/h within a 150 ms interval. For vehicles that record “delta-V, lateral,” trigger threshold means a change in vehicle velocity in either the longitudinal or lateral direction that equals or exceeds 8 km/h within a 150 ms interval. *Vehicle roll angle* means the angle between the vehicle's y-axis and the ground plane. *Volatile memory* means the memory reserved for buffering of captured EDR data. The memory is not capable of retaining data in a semi-permanent fashion. Data captured in volatile memory is continuously overwritten and is not retained in the event of a power loss or retrievable with EDR data extraction tools. *X-direction* means in the direction of the vehicle's X-axis, which is parallel to the vehicle's longitudinal centerline. The X-direction is positive in the direction of forward vehicle travel. *Y-direction* means in the direction of the vehicle's Y-axis, which is perpendicular to its X-axis and in the same horizontal plane as that axis. The Y-direction is positive from left to right, from the perspective of the driver when seated in the vehicle facing the direction of forward vehicle travel. *Z-direction* means in the direction of the vehicle's Z-axis, which is perpendicular to the X- and Y-axes. The Z-direction is positive in a downward direction. 5. Revise § 563.7 to read as follows: § 563.7 Data elements.
(a)*Data elements required for all vehicles* . Each vehicle equipped with an EDR must record all of the data elements listed in Table I, during the interval/time and at the sample rate specified in that table. Table I.—Data Elements Required for all Vehicles Equipped With an EDR Data element Recording interval/time 1 (relative to time zero) Data sample rate (samples per second) Delta-V, longitudinal 0 to 250 ms, or 0 to End of Event Time plus 30 ms, whichever is shorter 100 Maximum delta-V, longitudinal 0 to 300 ms, or 0 to End of Event Time plus 30 ms, whichever is shorter N/A Time, maximum delta-V 0 to 300 ms, or 0 to End of Event Time plus 30 ms, whichever is shorter N/A Speed, vehicle indicated −5.0 to 0 sec 2 Engine throttle, % full (or accelerator pedal, % full) −5.0 to 0 sec 2 Service brake, on/off −5.0 to 0 sec 2 Ignition cycle, crash −1.0 sec N/A Ignition cycle, download At time of download 3 N/A Safety belt status, driver −1.0 sec N/A Frontal air bag warning lamp, on/off 2 −1.0 sec N/A Frontal air bag deployment, time to deploy, in the case of a single stage air bag, or time to first stage deployment, in the case of a multi-stage air bag, driver Event N/A Frontal air bag deployment, time to deploy, in the case of a single stage air bag, or time to first stage deployment, in the case of a multi-stage air bag, right front passenger Event N/A Multi-event, number of events (1, 2) Event N/A Time from event 1 to 2 As needed N/A Complete file recorded (yes, no) Following other data N/A 1 Pre-crash data and crash data are asynchronous. The sample time accuracy requirement for pre-crash time is −0.1 to 1.0 sec (e.g., T = −1 would need to occur between −1.1 and 0 seconds). 2 The frontal air bag warning lamp is the readiness indicator specified in S4.5.2 of FMVSS No. 208. 3 The ignition cycle at the time of download is not required to be recorded at the time of the crash, but shall be reported during the download process.
(b)*Data elements required for vehicles under specified conditions* . Each vehicle equipped with an EDR must record each of the data elements listed in column 1 of Table II for which the vehicle meets the condition specified in column 2 of that table, during the interval/time and at the sample rate specified in that table. TABLE II.—Data Elements Required for Vehicles Under Specified Minimum Conditions Data element name Condition for requirement Recording interval/time 1 (relative to time zero) Data sample rate (per second) Lateral acceleration If recorded 2 0 to 250 ms 100 Longitudinal acceleration If recorded 0 to 250 ms 100 Normal acceleration If recorded 0 to 250 ms 100 Delta-V, lateral If recorded 0 to 250 ms, or 0 to End of Event Time plus 30 ms, whichever is shorter 100 Maximum delta-V, lateral If recorded 0 to 300 ms, or 0 to End of Event Time plus 30 ms, whichever is shorter N/A Time, maximum delta-V, lateral If recorded 0 to 300 ms, or 0 to End of Event Time plus 30 ms, whichever is shorter N/A Time, maximum delta-V, resultant If recorded 0 to 300 ms, or 0 to End of Event Time plus 30 ms, whichever is shorter N/A Engine RPM If recorded -50 to 0 sec 2 Vehicle roll angle If recorded -10 up to 50 sec 3 10 ABS activity (engaged, non-engaged) If recorded -50 to 0 sec 2 Stability control (on, off, engaged) If recorded -50 to 0 sec 2 Steering input If recorded -50 to 0 sec 2 Safety belt status, right front passenger (buckled, not buckled) If recorded -10 sec N/A Frontal air bag suppression switch status, right front passenger (on, off, or auto) If recorded -10 sec N/A Frontal air bag deployment, time to nth stage, driver 4 If equipped with a driver's frontal air bag with a multi-stage inflator Event N/A Frontal air bag deployment, time to nth stage, right front passenger 4 If equipped with a right front passenger's frontal air bag with a multi-stage inflator Event N/A Frontal air bag deployment, nth stage disposal, driver, Y/N (whether the nth stage deployment was for occupant restraint or propellant disposal purposes) If recorded Event N/A Frontal air bag deployment, nth stage disposal, right front passenger, Y/N (whether the nth stage deployment was for occupant restraint or propellant disposal purposes) If recorded Event N/A Side air bag deployment, time to deploy, driver If recorded Event N/A Side air bag deployment, time to deploy, right front passenger If recorded Event N/A Side curtain/tube air bag deployment, time to deploy, driver side If recorded Event N/A Side curtain/tube air bag deployment, time to deploy, right side If recorded Event N/A Pretensioner deployment, time to fire, driver If recorded Event N/A Pretensioner deployment, time to fire, right front passenger If recorded Event N/A Seat track position switch, foremost, status, driver If recorded -10 sec N/A Seat track position switch, foremost, right front passenger If recorded -10 sec N/A Occupant size classification, driver If recorded -10 sec N/A Occupant size classification, right front passenger If recorded -10 sec N/A Occupant position classification, driver If recorded -10 sec N/A Occupant position classification, right front passenger If recorded -10 sec N/A 1 Pre-crash data and crash data are asynchronous The sample time accuracy requirement for pre-crash time is -01 to 10 sec (e.g., T = -1 would need to occur between -11 and 0 seconds) 2 “If recorded” means if the data is recorded in non-volatile memory for the purpose of subsequent downloading 3 “Vehicle roll angle” may be recorded in any time duration -10 to 50 seconds is suggested 4 List this element n—1 times, once for each stage of a multi-stage air bag system 6. Revise § 5638 to read as follows: § 563.8 Data format
(a)The data elements listed in Tables I and II, as applicable, must be reported in accordance with the range, accuracy, and resolution specified in Table III Table III.—Reported Data Element Format Data element Minimum range Accuracy Resolution Lateral acceleration −5 g to +5 g ±10% 0.5 g. Longitudinal acceleration −50 g to +50 g ±10% 0.5 g. Normal acceleration −5 g to +5 g ±10% 0.5 g. Longitudinal delta-V −100 km/h to + 100 km/h ±10% 1 km/h. Lateral delta-V −100 km/h to + 100 km/h ±10% 1 km/h. Maximum delta-V, longitudinal −100 km/h to + 100 km/h ±10% 1 km/h. Maximum delta-V, lateral −100 km/h to + 100 km/h ±10% 1 km/h. Time, maximum delta-V, longitudinal 0—300 ms, or 0—End of Event Time plus 30 ms, whichever is shorter ±3 ms 2.5 ms. Time, maximum delta-V, lateral 0—300 ms, or 0—End of Event Time plus 30 ms, whichever is shorter ±3 ms 2.5 ms. Time, maximum delta-V, resultant 0—300 ms, or 0—End of Event Time plus 30 ms, whichever is shorter ±3 ms 2.5 ms. Vehicle roll angle −1080 deg to + 1080 deg ±10% 10 deg. Speed, vehicle indicated 0 km/h to 200 km/h ±1 km/h 1 km/h. Engine throttle, percent full (accelerator pedal percent full) 0 to 100% ±5% 1%. Engine RPM 0 to 10,000 rpm ± 100 rpm. 100 rpm. Service brake (on, off) On and Off N/A On and Off. ABS activity On and Off N/A On and Off. Stability control (on, off, engaged) On, Off, Engaged N/A On, Off, Engaged. Steering input −250 deg CW to + 250 deg CCW ±5% 1%. Ignition cycle, crash 0 to 60,000 ±1 cycle 1 cycle. Ignition cycle, download 0 to 60,000 ±1 cycle 1 cycle. Safety belt status, driver On or Off N/A On or Off. Safety belt status, right front passenger On or Off N/A On or Off. Frontal air bag warning lamp (on, off) On or Off N/A On or Off. Frontal air bag suppression switch status On, Off, or Auto N/A On, Off, or Auto. Frontal air bag deployment, time to deploy/first stage, driver 0 to 250 ms ±2 ms 1 ms. Frontal air bag deployment, time to deploy/first stage, right front passenger 0 to 250 ms ±2 ms 1 ms. Frontal air bag deployment, time to n th stage, driver 0 to 250 ms ±2 ms 1 ms. Frontal air bag deployment, time to n th stage, right front passenger 0 to 250 ms ±2 ms 1 ms. Frontal air bag deployment, n th stage disposal, driver (y/n) Yes or No N/A Yes or No. Frontal air bag deployment, n th stage disposal, right front passenger (y/n) Yes or No N/A Yes or No. Side air bag deployment, time to deploy, driver 0 to 250 ms ±2 ms 1 ms. Side air bag deployment, time to deploy, right front passenger 0 to 250 ms ±2 ms 1 ms. Side curtain/tube air bag deployment, time to deploy, driver side 0 to 250 ms ±2 ms 1 ms. Side curtain/tube air bag deployment, time to deploy, right side 0 to 250 ms ±2 ms 1 ms. Pretensioner deployment, time to fire, driver 0 to 250 ms ±2 ms 1 ms. Pretensioner deployment, time to fire, right front passenger 0 to 250 ms ±2 ms 1 ms. Seat track position switch, foremost, status, driver Yes or No N/A Yes or No. Seat track position switch, foremost, status, right front passenger Yes or No N/A Yes or No. Occupant size driver occupant 5 th female size (y/n) Yes or No N/A Yes or No. Occupant position size right front passenger child (y/n) Yes or No N/A Yes or No. Occupant position classification, driver oop (y/n) Yes or No N/A Yes or No. Occupant position classification, right front passenger oop (y/n) Yes or No N/A Yes or No. Multi-event, number of events (1, 2) 1 or 2 N/A 1 or 2. Time from event 1 to 2 0 to 5.0 sec 0.1 sec 0.1 sec. Complete file recorded (y/n) Yes or No N/A Yes or No.
(b)Acceleration Time-History data and format: the longitudinal, lateral, and normal acceleration time-history data, as applicable, must be filtered either during the recording phase or during the data downloading phase to include:
(1)The Time Step
(TS)that is the inverse of the sampling frequency of the acceleration data and which has units of seconds;
(2)The number of the first point (NFP), which is an integer that when multiplied by the TS equals the time relative to time zero of the first acceleration data point;
(3)The number of the last point (NLP), which is an integer that when multiplied by the TS equals the time relative to time zero of the last acceleration data point; and
(4)NLP—NFP + 1 acceleration values sequentially beginning with the acceleration at time NFP * TS and continue sampling the acceleration at TS increments in time until the time NLP * TS is reached. 7. Revise § 563.9 to read as follows: § 563.9 Data capture. The EDR must capture and record the data elements for events in accordance with the following conditions and circumstances:
(a)In a frontal or side air bag deployment crash, capture and record the current deployment data, up to two events. The memory for each air bag deployment event must be locked to prevent any future overwriting of these data.
(b)In a deployment event that involves another type of deployable restraint (e.g., pretensioners, knee bolsters, pedestrian protection, etc.), or in a non-deployment event that meets the trigger threshold, capture and record the current non-deployment data, up to two events, subject to the following conditions:
(1)If an EDR non-volatile memory buffer void of previous-event data is available, the current non-deployment event data is recorded in the buffer.
(2)If an EDR non-volatile memory buffer void of previous-event data is not available, the manufacturer may choose either to overwrite the previous non-deployment event data with the current non-deployment event data, or not to record the current non-deployment event data.
(3)EDR buffers containing previous deployment-event data must not be overwritten by the current non-deployment event data. Issued: January 8, 2008. Nicole R. Nason, Administrator. [FR Doc. E8-407 Filed 1-11-08; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070227048-7091-02] RIN 0648-XE82 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Modification of the Yellowtail Flounder Landing Limit for the U.S./Canada Management Area AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; trip limit change. SUMMARY: NMFS announces that the Administrator, Northeast
(NE)Region, NMFS (Regional Administrator), is decreasing the Georges Bank
(GB)yellowtail flounder trip limit to 1,500 lb (680 kg) for NE multispecies days-at-sea
(DAS)vessels fishing in the U.S./Canada Management Area. This action is authorized by the regulations implementing Amendment 13 to the NE Multispecies Fishery Management Plan and is intended to prevent over-harvest of the Total Allowable Catch
(TAC)for GB yellowtail flounder. This action is being taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) to slow the catch rate of GB yellowtail flounder to provide opportunity for vessels to continue fishing while helping to ensure that the TAC will not be exceeded during the 2007 fishing year (May 1, 2007 - April 20, 2008). DATES: Effective 0001 hours local time January 10, 2008, through April 30, 2008. FOR FURTHER INFORMATION CONTACT: Mark Grant, Fishery Management Specialist,
(978)281-9145, fax
(978)281-9135. SUPPLEMENTARY INFORMATION: Regulations governing the GB yellowtail flounder landing limit within the U.S./Canada Management Area are found at § 648.85(a)(3)(iv)(C) and (D). The regulations authorize vessels issued a valid Federal limited access NE multispecies permit and fishing under a NE multispecies DAS to fish in the U.S./Canada Management Area, as defined at § 648.85(a)(1), under specific conditions. The TAC for GB yellowtail flounder for the 2007 fishing year is 900 mt. The regulations at § 648.85(a)(3)(iv)(D) authorize the Regional Administrator to increase or decrease the trip limit in the U.S./Canada Management Area to prevent over-harvesting or under-harvesting the TAC allocation. On April 24, 2007 (72 FR 20287), based upon the reduced 2007 TAC for GB yellowtail flounder (a 43-percent reduction from 2006) and projections of harvest rates in the fishery, the trip limit for GB yellowtail flounder was set at 3,000 lb (1,361 kg) for the 2007 fishing year, to prevent the over-harvest of the 2007 GB yellowtail flounder TAC, and to prevent a premature closure of the Eastern U.S./Canada Management Area and, therefore, reduced opportunities to fish for Eastern GB cod and haddock in the Eastern U.S./Canada Area. On November 27, 2007, the GB yellowtail flounder trip limit was increased to 7,500 lb (3,402 kg) because the 3,000-lb (1,361-kg) trip limit was projected to result in the under-harvest of the TAC. According to the most recent Vessel Monitoring System
(VMS)reports and other available information, the cumulative GB yellowtail flounder catch, as of January 9, 2008, is estimated to be 82 percent of the TAC, with a projection that the complete harvest of the TAC would occur by January 23, 2008. Harvest of the GB yellowtail flounder TAC would prevent the reopening of the Eastern U.S./Canada Area to harvest the remaining portions of the GB cod and GB haddock TACs. Decreasing the GB yellowtail flounder trip limit to 1,500 lb (680 kg) from 7,500 lb (3,402 kg) is expected to reduce the number of trips made to the Western U.S./Canada Area to target GB yellowtail flounder, decrease landings of yellowtail flounder without increasing discards, and result in the achievement of the TAC during the fishing year without exceeding it. Based on this information, the Regional Administrator is decreasing the current 7,500-lb (3,402-kg) trip limit in the U.S./Canada Area to 1,500 lb (680 kg) per trip, effective 0001 hours local time January 10, 2008, through April 30, 2008. GB yellowtail flounder landings will continue to be closely monitored. Further inseason adjustments to increase or decrease the trip limit may be considered, based on updated catch data and projections. Should 100 percent of the TAC allocation for GB yellowtail flounder be projected to be harvested, all vessels would be prohibited from harvesting, possessing, or landing yellowtail flounder from the entire U.S./Canada Management Area, and the Eastern U.S./Canada Area would be closed to limited access NE multispecies DAS vessels for the remainder of the fishing year. Classification This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866. Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), there is good cause to waive prior notice and opportunity for public comment; as well as the delayed effectiveness for this action, because prior notice and comment, and a delayed effectiveness, would be impracticable and contrary to the public interest. The regulations under § 658.85(a)(3)(iv)(D) grant the Regional Administrator the authority to adjust the GB yellowtail flounder trip limit to prevent over-harvesting or under-harvesting the TAC allocation. This action would reduce the GB yellowtail trip limit for all NE multispecies DAS vessels fishing in the U.S./Canada Management Area for the remainder of the 2007 fishing year. This action is intended to prevent the over-harvest of the GB yellowtail flounder TAC while allowing continued opportunities to achieve optimum yield in the NE multispecies fishery. This action is authorized by the regulations at § 648.85(a)(3)(iv)(D). It is important to take this action immediately because the rapid catch rate observed since implementing the 7,500-lb (3,402-kg) GB yellowtail flounder trip limit on November 27, 2007, is projected to result in the TAC being achieved on January 23, 2008. This would require that the Eastern U.S./Canada Area remain closed for the remainder of the 2007 fishing year, preventing the reopening the Eastern U.S./Canada Management Area to harvest the remaining portions of the GB cod and GB haddock TACs. Allowing the current rapid catch rate (33 percent of the TAC was caught between December 6, 2007, and January 3, 2008) to continue during the period necessary to publish and receive comments on a proposed rule could potentially allow the GB yellowtail flounder harvest to exceed the GB yellowtail flounder TAC for the 2007 fishing year. Exceeding the 2007 TAC for GB yellowtail flounder would increase mortality of this overfished stock beyond that evaluated during the development of Amendment 13, resulting in decreased revenue for the NE multispecies fishery, increased negative economic impacts to vessels operating in the U.S./Canada Area, a reduced chance of achieving optimum yield in the groundfish fishery, and unnecessary delays to the rebuilding of this overfished stock. Exceeding the 2007 GB yellowtail flounder TAC would also necessitate that any overages during the 2007 fishing year be deducted from the GB yellowtail TAC for the 2008 fishing year. Reducing the 2008 TAC due to any 2007 TAC overage caused by delaying this action would create an unnecessary burden on the fishing industry and further negative economic and social impacts that were not previously considered. The potential of decreasing the GB yellowtail flounder trip limit was announced to the public when the 7,500-lb (3,402-kg) trip limit was implemented on November 27, 2007. Further, the public is able to obtain information on the rate of harvest of the GB yellowtail flounder TAC via the Northeast Regional Office website ( *http://www.nero.noaa.gov* ), which provides at least some advanced notice of a potential action to prevent the TAC for GB yellowtail flounder from being exceeded during the 2007 fishing year. The Regional Administrator's authority to decrease the trip limit for GB yellowtail flounder in the U.S./Canada Management Area to ensure the shared U.S./Canada stocks of fish are harvested, but not exceeded, was considered and open to public comment during the development of Amendment 13 and FW 42. Therefore, any negative effect the waiving of public comment and delayed effectiveness may have on the public is mitigated by these factors. Authority: 16 U.S.C. 1801 *et seq.* Dated: January 9, 2008. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08-91 Filed 1-9-08; 12:57 pm]
Connectionstraces to 45
Traces to 45 documents
U.S. Code
28 references not yet in our index
  • 5 CFR 1201
  • Pub. L. 109-351
  • Pub. L. 109-171
  • Pub. L. 109-173
  • 12 CFR 303
  • 12 CFR 308
  • 12 CFR 309
  • 15 USC 1601-1607
  • 15 USC 78(h)
  • Pub. L. 104-134
  • 33 CFR 137
  • Pub. L. 108-293
  • 40 CFR 312
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • 39 CFR 20
  • 40 CFR 52
  • Pub. L. 104-4
  • 472 F.3d 882
  • 40 CFR 81
  • 41 CFR 102
  • 49 CFR 563
  • 49 CFR 1.50
  • 49 CFR 567.7
  • 50 CFR 648
Citation graph
cites case law
Unknown
Final rule
U.S.C.§ 1204
U.S.C.§ 1464
U.S.C.§ 1815
U.S.C.§ 1828
C.F.R.§ 303.61
U.S.C.§ 1817
U.S.C.§ 4809
U.S.C.§ 553
U.S.C.§ 603
F. App'x472 F.3d 882
Cite5 CFR 1201
Pub. L.Pub. L. 109-351
Cites 73 · showing 12Cited by 0 across 0 sources
★   the supreme law of the land   ★
Don't Tread on Me
E Pluribus Unum — out of many, one

"If you don't know your rights, you don't have any."

Marginalia · a citizen's law index
A research desk, not legal advice. Always read the cited source before relying on a summary.
Questions or an issue? support@self-law.org
disclaimerMarginalia is a research index, not a law firm. Nothing on this site is legal, tax, or financial advice and no attorney–client relationship is formed by using it. Statutes, regulations, and case law change; summaries, search results, AI output, and member posts may be incomplete, out of date, or wrong. Any interpretation drawn from material on this site should be validated by a licensed attorney in your jurisdiction before you act on it.