18716 Federal Register / Vol. 62, No. 74 / Thursday, April 17, 1997 / Rules and Regulations

have a significant impact on a

substantial number of small entities

because it does not remove existing

requirements, nor does it impose any

new Federal requirements.

C. Unfunded Mandates

Under Sections 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under Section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval

action promulgated does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local, or tribal

governments in the aggregate, or to the

private sector. This Federal action

approves pre-existing requirements

under State or local law, and imposes

no new requirements. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action.

D. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) of the

Regulatory Flexibility Act as added by

the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted 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 General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

E. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by June 16, 1997.

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 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, Hydrocarbons,

Incorporation by reference, Nitrogen

dioxide, Ozone.

Dated: March 8, 1997.

John P. DeVillars,

Regional Administrator, EPA Region I.

Part 52 of chapter I, title 40 of the

Code of Federal Regulations is amended

as follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart OO—Rhode Island

2. Section 52.2070 is amended by

adding paragraph (c)(50) to read as

follows:

§ 52.2070 Identification of plan.

* * * * * *

(c) * * *

(50) Revisions to the State

Implementation Plan submitted by the

Rhode Island Department of

Environmental Management on March

15, 1994. The revisions consist of the

State’s 15 Percent Plan and Contingency

Plan. EPA is approving only the

following portions of these submittals:

15 Percent Plan—the EPA is approving

the calculation of the required emission

reductions, and the emission reduction

credit claimed from surface coating,

printing operations, marine vessel

loading, plant closures (0.79 tons per

day approved out of 0.84 claimed),

cutback asphalt, auto refinishing, stage

II, reformulated gas in on-road and offroad engines, and tier I motor vehicle

controls. Contingency Plan—the EPA is

approving the calculation of the

required emission reduction, and a

portion of the emission reduction

credits claimed from Consumer and

Commercial products (1.1 tons per day

approved out of 1.9 tons claimed), and

architectural and industrial

maintenance (AIM) coatings (1.9 tons

per day approved out of 2.4 tons

claimed). EPA is concurrently

disapproving portions of these SIP

submissions, as discussed within

§ 52.2084(a)(2).

(i) Incorporation by reference.

(A) Letter from the Rhode Island

Department of Environmental

Management dated March 15, 1994,

submitting a revision to the Rhode

Island State Implementation Plan.

2. Section 52.2084 is amended by

adding paragraph (a)(2) to read as

follows:

§ 52.2084 Rules and Regulations.

* * * * *

(a) * * *

(2) Revisions to the State

Implementation Plan submitted by the

Rhode Island Department of

Environmental Management on March

15, 1994. The revisions consist of the

State’s 15 Percent Plan and Contingency

Plan. EPA is disapproving the following

portions of these SIP submittals: 15

Percent Plan—Emission reductions

claimed from motor vehicle inspection

and maintenance program, non-CTG

sources, air toxic sources, and plant

closures (0.05 tons per day disapproved

out of 0.84 tons claimed). Contingency

Plan—a portion of the credit claimed

from consumer and commercial

products (0.8 tons per day disapproved

out of 1.9 tons claimed), and a portion

of the credit claimed from AIM coatings

(0.5 tons per day disapproved out of 2.4

tons claimed).

[FR Doc. 97–9949 Filed 4–16–97; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[CO–001–0016; FRL–5802–6]

Clean Air Act Approval and

Promulgation of PM10 Implementation

Plan for Denver, CO

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is approving the State

Implementation Plan (SIP) revisions

submitted by the Governor of Colorado

for the purpose of bringing about the

attainment of the national ambient air

quality standards (NAAQS) for

particulate matter with an aerodynamic

diameter less than or equal to a nominal

10 micrometers (PM10) in the Denver

area. The SIP revisions were submitted

to satisfy certain Federal requirements

for an approvable moderate

nonattainment area PM10 SIP for Denver

and, among other things, contain

enforceable control measures. The bulk

of the revisions were submitted on

March 30, 1995. Revisions to Colorado

Regulation No. 13 (oxygenated fuels),

which is one of the control measures

relied on in the SIP, were adopted by

the Air Quality Control Commission
Federal Register / Vol. 62, No. 74 / Thursday, April 17, 1997 / Rules and Regulations 18717

1The 1990 Amendments to the Clean Air Act

made significant changes to the Act. See Pub. L. No.

101–549, 104 Stat. 2399. References herein are to

the Clean Air Act, as amended (‘‘the Act’’). The

Clean Air Act is codified, as amended, in the U.S.

Code at 42 U.S.C. 7401, et seq.

2Subpart 1 contains provisions applicable to

nonattainment areas generally and Subpart 4

contains provisions specifically applicable to PM10

nonattainment areas. At times, Subpart 1 and

Subpart 4 overlap or conflict. EPA has attempted to

clarify the relationship among these provisions in

the ‘‘General Preamble’’ and, as appropriate, in

today’s notice and supporting information.

(AQCC) on October 19, 1995 and

submitted to EPA on December 22,

1995. EPA proposed to approve the

March 30, 1995 submission on October

3, 1996. On December 6, 1996, EPA

published a supplemental proposal to

approve the Denver PM10 SIP based on

the October 19, 1995 version of

Regulation No. 13 rather than the prior

version. This action supersedes EPA’s

July 25, 1994, final limited approval of

certain control measures found in the

State’s June 7, 1993 Denver PM10 SIP

submittal.

DATES This action will become effective

on May 19, 1997.

ADDRESSES: Copies of the State’s

submittal and other information are

available for inspection during normal

business hours at the following

locations: Environmental Protection

Agency, Region VIII, Air Programs, 999

18th Street, 3rd Floor, South Terrace,

Denver, Colorado 80202–2466; Colorado

Air Pollution Control Division, 4300

Cherry Creek Dr. South, Denver,

Colorado 80222–1530; and the Air and

Radiation Docket and Information

Center, 401 M Street, SW, Washington,

D.C. 20460.

FOR FURTHER INFORMATION CONTACT:

Callie Videtich at (303) 312–6434.

SUPPLEMENTARY INFORMATION:

I. Background

The Denver, Colorado area was

designated nonattainment for PM10 and

classified as moderate under sections

107(d)(4)(B) and 188(a) of the Act, upon

enactment of the Clean Air Act

Amendments of 1990.1 See 56 FR 56694

(Nov. 6, 1991) and 40 CFR 81.306

(specifying PM10 nonattainment

designation for the Denver metropolitan

area). The air quality planning

requirements for moderate PM10

nonattainment areas are set out in Part

D, Subparts 1 and 4, of Title I of the

Act. 2

The EPA has issued a ‘‘General

Preamble’’ describing EPA’s preliminary

views on how EPA intends to review

SIPs and SIP revisions submitted under

Title I of the Act, including those State

submittals containing moderate PM10

nonattainment area SIP requirements

(see generally 57 FR 13498 (April 16,

1992) and 57 FR 18070 (April 28,

1992)). Because EPA is describing its

interpretations here only in broad terms,

the reader should refer to the General

Preamble for a more detailed discussion

of the interpretations of Title I advanced

in this action and the supporting

rationale. In this rulemaking action on

the Colorado moderate PM10 SIP for the

Denver nonattainment area, EPA is

applying its interpretations considering

the specific factual issues presented.

Those States containing initial

moderate PM10 nonattainment areas

(those areas designated nonattainment

under section 107(d)(4)(B) of the Act)

were required to submit, among other

things, the following plan provisions by

November 15, 1991:

1. Provisions to assure that reasonably

available control measures (RACM)

(including such reductions in emissions

from existing sources in the area as may

be obtained through the adoption, at a

minimum, of reasonably available

control technology (RACT)) shall be

implemented no later than December

10, 1993;

2. Either a demonstration (including

air quality modeling) that the plan will

provide for attainment as expeditiously

as practicable but no later than

December 31, 1994, or a demonstration

that attainment by that date is

impracticable;

3. Quantitative milestones which are

to be achieved every 3 years and which

demonstrate reasonable further progress

(RFP) toward attainment by December

31, 1994; and

4. Provisions to assure that the control

requirements applicable to major

stationary sources of PM10 also apply to

major stationary sources of PM10

precursors except where the

Administrator determines that such

sources do not contribute significantly

to PM10 levels which exceed the

NAAQS in the area. See sections 172(c),

188, and 189 of the Act.

Some provisions were due at a later

date. States with initial moderate PM10

nonattainment areas were required to

submit a new source review (NSR)

permit program for the construction and

operation of new and modified major

stationary sources of PM10 by June 30,

1992 (see section 189(a)). On January 14,

1993, the State submitted regulation

revisions for the construction of new

and modified major stationary sources.

On August 18, 1994, EPA partially

approved the State’s NSR program for

the Denver PM10 nonattainment area

because the State had not yet submitted

NSR provisions for sources of PM10

precursors (i.e., NOX and SO2) in the

Denver area (see 59 FR 42300). On

August 25, 1994, Colorado submitted

additional NSR provisions for precursor

emissions. EPA took final action on that

SIP submittal on January 21, 1997 (62

FR 2910). Thus, the State has a fullyapproved NSR permitting program in

place for the Denver moderate PM10

nonattainment area.

States were also required to submit

contingency measures for PM10

moderate nonattainment areas by

November 15, 1993. The contingency

measures for the Denver PM10

nonattainment area were initially

submitted by the Governor on December

9, 1993. However, those control

measures were later incorporated into

the revised March 30, 1995 PM10 SIP to

help demonstrate attainment and

maintenance. Thus, the State developed

new contingency measures, and on

November 17, 1995, the Governor

submitted those measures to EPA. EPA

took direct final rulemaking action on

the contingency measures SIP submittal

on September 23, 1996 (61 FR 49682).

Because no adverse comments were

received for the direct final rulemaking,

the rule became effective on December

23, 1996.

On June 7, 1993, the Governor

submitted a SIP for Denver to EPA

which was intended to satisfy those

elements due November 15, 1991. On

December 20, 1993, EPA proposed to

conditionally approve that SIP and also

proposed to approve the SIP’s control

measures for their limited purpose of

strengthening the Colorado SIP (58 FR

66326). On July 25, 1994, EPA granted

limited approval of the control measures

for the limited purpose of strengthening

the SIP (59 FR 37698).

During review of the technical

information supporting the June 1993

SIP, EPA examined information which

raised concerns about the accuracy of

the SIP’s attainment demonstration. The

SIP’s technical support documentation

suggested that the contribution from

PM10 ‘‘precursors’’ (i.e., NOX and SO2)

in the base year winter season may have

been underestimated. Since the

attainment demonstration provided

with that SIP predicted a value of 149.9

μg/m3 over 24 hours, virtually any

increase in precursor PM10 levels would

result in predicted violations of the 24-

hour standard.

In the December 20, 1993, proposed

rulemaking action, EPA requested

public comment on its proposal to grant

conditional approval of the SIP in light

of the precursor issue. EPA reviewed the

information submitted during the public

comment period and concluded that

precursors were underestimated by 5.4

μg/m.3 Based upon this finding, EPA
18718 Federal Register / Vol. 62, No. 74 / Thursday, April 17, 1997 / Rules and Regulations

delayed taking final action on the

proposed conditional approval to allow

the State an opportunity to develop

additional controls to offset this

increase. EPA never proceeded with the

conditional approval. On March 30,

1995, the Governor submitted a SIP

revision intended to provide controls to

offset the increase in precursor

emissions and provide credible

attainment and maintenance

demonstrations. Based on this SIP

revision, EPA proposed approval of the

PM10 SIP on October 3, 1996 (61 FR

51631).

On July 18, 1995, and April 22, 1996,

the Governor submitted additional

revisions to the SIP which establish

mobile source emissions budgets for

PM10 and NOX. These budgets are used

under EPA regulations for making

transportation related conformity

determinations as required by section

176(c) of the Act. EPA’s transportation

conformity rule provides that these

budgets establish a cap on motor

vehicle-related emissions which cannot

be exceeded by the predicted

transportation system emissions in the

future unless the cap is amended by the

State and approved by EPA as a SIP

revision and attainment and

maintenance of the standard can be

demonstrated. EPA proposed approval

of these emissions budgets on October 3,

1996 along with the Denver PM10 SIP.

However, EPA is not taking final action

on the two emissions budgets in order

to more thoroughly consider comments

received during the public comment

period. These emissions budgets are not

necessary to meet the Act’s

requirements for moderate PM10

nonattainment areas and, therefore, will

be addressed in a separate rulemaking.

EPA became aware after proposing

approval of the PM10 SIP that the

version of Regulation No. 13

(oxygenated fuels) that was one of the

control measures relied on in the

Denver PM10 SIP had been replaced by

the October 19, 1995 version of

Regulation No. 13. The Governor

submitted this version to EPA as a SIP

revision on December 22, 1995. The

October 19, 1995 version eliminates the

last two weeks from the program and

calls for a 3.1% program rather than a

2.7% program. On December 6, 1996 (61

FR 64647) EPA published a

supplemental document that, among

other things, proposed to approve the

Denver PM10 SIP with the October 19,

1995 version of Regulation No. 13

substituted for the prior version. EPA

received no comments regarding this

aspect of the supplemental document

and is proceeding with its approval of

the Denver PM10 SIP based on the

October 19, 1995 version of Regulation

No. 13.

EPA has already approved the

October 19, 1995 version of Regulation

No. 13 as part of the Denver carbon

monoxide (CO) SIP. The acting Regional

Administrator for EPA Region VIII

signed a Federal Register document

approving the Denver CO SIP on

January 31, 1997, but at the time this

document was prepared, that approval

had not yet been published in the

Federal Register.

II. Response to Public Comments

EPA received numerous comments on

its proposed approval of the Denver

PM10 SIP and the PM10 and NOX

emissions budgets. In this document,

EPA is addressing only those comments

submitted on the Denver PM10 SIP. The

comments received regarding the

emissions budgets will be addressed in

a later rulemaking action. The

comments received on the Denver PM10

SIP and EPA’s responses follow.

1. The SIP revision fails to contain

control measures to limit motor vehicle

emissions from current vehicle miles

traveled (VMT) or revised projections of

VMT growth and does not provide for

attainment.

As EPA noted in its approval of the

Denver CO SIP, the Denver Regional

Council of Governments (DRCOG)

produced revised estimates of daily

vehicle miles traveled in the summer

and fall of 1996. In early 1996, DRCOG

made some improvements to its

transportation demand model (used for

transportation planning, and to produce

estimates of future VMT and speeds for

air quality planning purposes) and

validated the model with actual 1995

traffic counts recorded in Denver. These

adjustments led to revised estimates of

approximately 49 million miles per day

of traffic in the Denver area (the

previous modeled estimate had been

approximately 45 million miles per

day). The commentor referred to these

revised estimates and suggested that

EPA should disapprove the SIP on this

basis, or conditionally approve the SIP

and request that the State submit

additional controls.

EPA believes that the increases in

VMT are not sufficient to warrant

revisions to the PM10 SIP or its

disapproval. EPA believes that it is

reasonable to allow some margin of

error for VMT projections in attainment

demonstrations. This is because these

projections are by their nature inexact.

For CO SIPs, EPA has recognized this in

the General Preamble and other

guidance (see 57 FR 13532 and Section

187 VMT Forecasting and Tracking

Guidance, January 1992). EPA applied

these policies in its approval of the

Denver CO SIP and believes it is

reasonable to extend them to the Denver

PM10 SIP.

It must be emphasized that only part

of the estimated VMT increase is due to

actual growth in traffic in the Denver

region; the rest is due to use of

improved methodologies for traffic

counting in the region. For this reason,

EPA believes it is more appropriate to

consider the impact of actual growth in

VMT by examining counts based on a

consistent methodology, that is, the

HPMS-based VMT Tracking Program. In

November 1996, Colorado submitted its

1996 report of 1995 actual annual VMT,

as required by section 187 of the Act for

CO SIPs. This report showed that actual

1995 VMT were 4.4% greater than the

CO SIP projections and 1.3% greater

than the most recent revised projection

for 1995. These exceedances are within

the allowable limits of EPA’s VMT

Tracking Program guidance for CO SIPs

(5.0% and 3.0% for the respective VMT

projections). EPA established these

tolerances in recognition of the

uncertainty inherent in attempting to

measure actual VMT in a large urban

area. Since the most recent reported

actual annual VMT is within these

allowable tolerances, EPA is not

requiring the State to revise either the

CO or PM10 SIPs.

One other factor that should be noted

is that virtually all of the growth in the

metro area has occurred not in the

downtown area, where the violations of

the NAAQS have been monitored, but in

outlying portions of the metro area.

Thus, EPA would expect that VMT in

the downtown area would increase at a

lower rate than VMT for the metro area

as a whole. This is supported by traffic

counts at locations near downtown,

which show that traffic in the central

area increased at a rate of approximately

2–3% per year between 1990 and 1995,

even though DRCOG estimates that

traffic has increased approximately

4.5% per year region wide.

2. Enforceability requirements of the

Act are not satisfied for some control

measures. EPA and the State lack

enforcement authority for woodburning

control measures relied on in the SIP.

The commentor indicates that

although the State’s woodburning

program requires that certification

programs for new or replaced stoves be

enforced through local building codes,

there is no provision for enforcement by

the State in the event the local

government fails to adopt the

certification requirement or fails to

enforce the code. In fact, Regulation No.

4, Section II.A, prohibits the sale of

wood stoves that do not meet the
Federal Register / Vol. 62, No. 74 / Thursday, April 17, 1997 / Rules and Regulations 18719

emission standards of 40 CFR

60.532(b)(1) or (2). There is no

exemption in the regulation for areas

with local prohibitions. Thus, the State

has the ability to directly enforce the

certification program for woodburning

stoves. And, because this provision will

be part of the SIP, EPA and citizens will

also be able to enforce it.

For new and remodeled woodburning

fireplaces, it is true that local building

codes and ordinances serve as the

primary mechanism for implementation

and enforcement. However, Section VIII

of Regulation No. 4 requires the local

jurisdictions to implement and enforce

the local codes and ordinances. The

State has the authority to enforce this

requirement for implementation and

enforcement. (See 25–7–115(l)(a),

C.R.S.) Because this requirement is

being approved by EPA, EPA and

citizens will also have the ability to

enforce it. Also, it appears that because

these local codes and ordinances have

been adopted as part of the SIP, the

State may have the ability to enforce

them directly pursuant to 25–7–128(l),

C.R.S. EPA is approving them as part of

the SIP, which will enable EPA and

citizens to enforce them.

For any local jurisdiction that has not

adopted the relevant provisions for

fireplaces into a building code or

ordinance as of January 1, 1993, Section

VII.A of Regulation No. 4 prohibits the

installation of a fireplace unless it is of

a type specified in Section VII.A. The

State may enforce this requirement.

Because EPA is approving this

requirement, EPA and citizens will also

have the ability to enforce it.

3. VMT reduction measures are not

adopted measures and are not

enforceable.

One commentor mentioned that

several programs and projects

administered by the Regional

Transportation District (RTD) in Denver

were included in the SIP modeling, but

were not adopted as transportation

control measures and/or made

enforceable. These projects include

RTD’s MAC light rail line, bus service

to Denver International Airport, and

three discount/free bus pass programs.

All of these programs have been

implemented, and the SIP’s assumption

that these activities would continue to

be implemented seems reasonable to

EPA. The MAC light rail line is a vital

transportation link to downtown and

serves as the starting point for a second

line proceeding down the southwest

corridor, which has been approved and

is under development, and a proposed

third line in the southeast corridor,

which is currently being evaluated as

part of a Major Investment Study in that

corridor. Bus service to the airport has

been implemented, and there are no

current plans to discontinue it. The

discount bus pass programs mentioned

in the SIP have proven quite popular,

helping to ensure their continuation. It

seems more reasonable for the SIP to

assume that these RTD activities would

continue than to assume they would be

terminated.

States are authorized to base SIP

emission inventories on reasonable

assumptions regarding the makeup of

the transportation network in future

years. Most of the inputs to the

transportation modeling process

represent informed assumptions,

including the extent and location of

population and employment, speeds,

mode choice, and participation in tripreduction activities. The impacts of

these assumptions by their nature are

impractical to make enforceable; there

are no mechanisms through which the

SIP can force population growth to

occur in one area and not another, or

can force citizens to participate in

carpools or ride the bus. Likewise,

assumptions about the future

transportation network are reflected in

the transportation data used to generate

the inventory, but are not practical to

make enforceable. Each transportation

project in the transportation plan and

Transportation Improvement Program

(TIP) would have to be included in the

SIP, and the SIP would have to be

revised each time a new plan and TIP

were generated. Also, many projects

which do not reduce VMT still have a

localized benefit for air quality such as

the E470 beltway, which reduces CO in

the central metro area. However, it

would be inappropriate to include a

VMT- and emissions-generating project

like E470 in an SIP as a control measure.

4. Modeling. One commentor

criticized the accuracy of DRCOG’s

transportation modeling, and cited

concerns from Environmental Defense

Fund’s Michael Replogle. The

commentor did not supply a copy of Mr.

Replogle’s testimony and EPA does not

have it in its possession. Thus, EPA has

no basis to respond to specific concerns

Mr. Replogle might have had. However,

EPA believes the transportation

modeling for the SIP was adequate and

consistent with EPA guidance. EPA’s

guidance (Procedures for Preparing

Emissions Projections, EPA–450/4–91–

019, July 1991) establishes minimum

criteria for network modeling which

DRCOG has met. In fact, DRCOG has

exceeded guidance requirements, which

would allow the use of less robust

methods than network modeling. For

example, the New York City CO SIP

(which EPA has also approved) was not

based on network modeling. EPA’s

guidance generally advises states to use

the best tools they have available.

Neither EPA’s inventory nor SIP

guidance is written in such a way as to

advance the state of the art of VMT

modeling in areas required to prepare

SIPs or to require these areas to address

every identifiable shortcoming with

their particular modeling techniques.

Regarding the commentor’s assertions

about VMT growth since the SIP was

submitted, the reader should refer to

EPA’s response, above, regarding this

issue.

5. The regional network. One

commentor stated that the DRCOG

regional transportation network could

not be properly used for SIP purposes

because of inaccurate assumptions made

within the modeling regarding whether

certain projects would or would not be

built.

The commentor specifically noted

that the construction of the final

segment of E470 was not included in

DRCOG’s long-range transportation

modeling, ostensibly because funding

was not available for that project, while

several light rail projects were included

in the modeling even though funding for

those projects is not certain. However,

none of these projects were intended to

be completed during the timeframe of

the SIP’s attainment and maintenance

demonstrations (i.e., by the end of

December 1998) and are not included in

the SIP modeling. Thus, EPA’s approval

of the SIP is not affected in any way by

the implementation or delay of these

projects.

The commentor also states that its

ALTLOP—alternative list of projects—

would have produced lesser growth in

PM10 than DRCOG’s list of projects. EPA

notes that it cannot substitute its

judgement for the State’s or DRCOG’s

regarding which projects or controls to

implement as long as the Act’s

requirements are met. The SIP

demonstrates attainment and

maintenance of the PM10 standard with

the mix of projects selected by DRCOG.

6. Monitoring and air sampling. A

commentor indicated that further

information would be forthcoming

relating to continuity of monitoring,

siting of monitors and whether tire wear

particles are properly accounted for.

EPA did not receive any further

information on this subject and so has

no basis upon which to respond. It

should be noted that Colorado’s Statewide SIP, which includes the Denver

monitoring network, was reviewed and

approved by EPA on September 23,

1993 (see 58 FR 49434) as meeting the

requirements of 40 CFR Parts 53 and 58,

and the appendices to Part 50.
18720 Federal Register / Vol. 62, No. 74 / Thursday, April 17, 1997 / Rules and Regulations

3Carbon monoxide is not relevant to the PM10

SIP. However, EPA is incorporating by reference

Section IX of Regulation No. 1 that relates to CO

to accurately reflect the reorganization of the

regulation.

4Permit changes for TRIGEN achieve PM10 SIP

precursor emission reductions to accommodate

precursor emission increases at the Rocky Mountain

Bottle facility (formerly the Coors Glass Plant).

While these revisions to the emissions limits are

acceptable for meeting RACM/RACT requirements,

EPA’s action herein regarding these limits does not

in any manner relieve these companies of the

obligation to comply with any nonattainment NSR

permitting requirements that might apply to such

changes in emissions limits.

7. Conformity. One commentor makes

comments under this heading that go to

the validity of the SIP. The commentor

suggests that a value of 149.9 μg/m3 is

too close to the NAAQS of 150 μg/m3 to

be considered attainment, particularly

when the projections used to effect this

razor thin margin are acknowledged to

have been ‘‘low’’. Regarding the 149.9

μg/m3 value, EPA regulations dictate

that this value is considered attainment

of the standard. See 40 CFR 50.6 and

Part 50, Appendix K. By ‘‘projections’’,

EPA assumes the commentor is referring

to the VMT projections relied on for the

attainment and maintenance

demonstrations. As explained in

response to another comment, above,

the difference between estimates of

actual VMT and projections of VMT

contained in the SIP falls within a

reasonable margin of error and does not

warrant a revision to or disapproval of

the SIP. The reader should refer to the

comment and response, above, for a

more complete discussion of this issue.

The last sentence of the commentor’s

comment appears to relate to the

emissions budgets. EPA is not acting on

the budgets in this action and will defer

its response until it acts on the budgets.

8. Other. One commentor endorsed

EPA’s proposed approval of the Denver

element of the PM10 SIP, citing air

quality monitoring data collected since

1992 that is below the current standard

as evidence that the plan is working.

This comment requires no response.

III. This Action

EPA is approving the SIP revisions

submitted by the Governor of Colorado

for the purpose of bringing about the

attainment of the NAAQS for PM10. The

revisions were submitted to satisfy

certain federal requirements for

moderate PM10 nonattainment areas.

The bulk of the revisions were adopted

by the AQCC on October 20, 1994 with

an amendment on December 15, 1994

and were submitted by the Governor on

March 30, 1995. However, revisions to

Regulation No. 13 (oxygenated fuels)

were adopted by the AQCC on October

19, 1995 and submitted to EPA on

December 22, 1995. EPA is basing its

approval of the PM10 SIP on this

October 19, 1995 version of Regulation

No. 13 rather than the version relied on

in the March 30, 1995 submission. Also,

the State submitted a number of

technical support documents to EPA

after the original June 7, 1993 PM10 SIP

submittal that explain or are relied on

by the March 30, 1995 submittal and

comprise part of the basis for EPA’s

approval. These documents were

submitted on June 8, 1993, June 10,

1993, June 25, 1993, July 19, 1993,

August 5, 1993, September 3, 1993,

September 21, 1993, October 20, 1993,

December 12, 1993, January 19, 1994,

December 23, 1994, March 3, 1995, and

November 8, 1995.

It should be noted that the March 30,

1995 submission, in addition to

including new control measures, also

relies on control measures to which EPA

granted limited approval on July 25,

1994 (59 FR 37698). The current action

granting full approval to the PM10 SIP

supersedes EPA’s limited approval. To

avoid confusion, EPA is referencing in

the regulatory materials that are part of

this document both new provisions and

provisions to which EPA gave limited

approval in its July 25, 1994 action.

These later provisions include portions

of Regulation No. 1 and Regulation No.

4 that, through administrative error,

EPA inadvertently failed to reference in

the incorporation by reference section of

the July 1994 action. To correct this

clerical error, EPA is now incorporating

all of Regulation No. 4, and all of

Regulation No. 1 except Section V. As

noted in EPA’s action of December 3,

1986 (51 FR 43610), the sources subject

to Section V of Regulation No. 1 are no

longer operating, and thus, there is no

reason to act on Section V.

EPA is approving the control

strategies that are relied upon in the

March 30, 1995 submission as well as

the attainment and maintenance

demonstrations contained therein. EPA

views the following measures as

reasonable, enforceable, and responsible

for PM10 emissions reductions in the

Denver PM10 nonattainment area: (1)

Colorado Regulation No. 4 which

regulates residential wood burning; (2)

local woodburning ordinances and

resolutions; (3) Colorado Regulation No.

16 which establishes street sanding and

sweeping requirements; (4) the federal

tailpipe standards, which provide an

ongoing benefit due to fleet turnover,

and Colorado Regulations 11, 12, and 13

which were developed by the State and

approved by EPA independently from

the PM10 SIP but are included because

of their particulate emission reduction

benefit; (5) Colorado Regulation No. 1,

which provides stationary source

emission control regulations for

particulates, smokes, carbon monoxide

and sulfur oxides 3; and (6) individual

stationary source permit revisions for

Public Service Company Cherokee

facility, Purina Mills, Electron

Corporation, TRIGEN—Colorado Energy

Corporation 4, Rocky Mountain Bottle

Company, Conoco Refinery, and Adolph

Coors Brewery. The State’s submission

demonstrates attainment of the PM10

NAAQS by December 31, 1994, with

continued maintenance of the standard

through December 31, 1997.

A more detailed discussion of the

individual source contributions and

their associated control measures

(including available control technology)

can be found in the Technical Support

Document accompanying EPA’s October

3, 1996 proposed approval of the Denver

moderate PM10 nonattainment area SIP

(61 FR 51631). As noted elsewhere in

this action, EPA received comments on

the proposed action to approve the

Denver PM10 SIP. EPA believes that the

responses set forth in this action

adequately address the comments and is

proceeding with the approval as

proposed.

EPA has reviewed this request for

revision of the federally-approved SIP

for conformance with the provisions of

the Act. EPA has determined that this

action conforms to those requirements.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to any SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

IV. Executive Order (EO) 12866

This action has been classified as a

Table 3 action for signature by the

Regional Administrator under the

procedures published in the Federal

Register on January 19, 1989 (54 FR

2214–2225), as revised by a July 10,

1995 memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation. The Office of Management

and Budget has exempted these

regulatory actions from EO 12866

review.

V. Regulatory Flexibility

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et. seq., EPA must prepare

a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, EPA may certify
Federal Register / Vol. 62, No. 74 / Thursday, April 17, 1997 / Rules and Regulations 18721

that the rule will not have a significant

impact on a substantial number of small

entities. Small entities include small

businesses, small not-for-profit

enterprises, and government entities

with jurisdiction over populations that

are less than 50,000.

SIP revision approvals under section

110 and subchapter I, Part D, of the CAA

do not create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval

process does not impose any new

requirements, EPA certifies that this

final rule would not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

Federal-State relationship under the

CAA, preparation of a regulatory

flexibility analysis would constitute

Federal inquiry into the economic

reasonableness of State actions. The

CAA forbids EPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S.E.P.A., 427

U.S. 246, 256–266 (S. Ct. 1976); 42

U.S.C. section 7410(a)(2).

VI. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a Federal mandate that

may result in estimated costs to State,

local, or tribal governments in the

aggregate, or to the private sector, of

$100 million or more. Under section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that today’s final

approval action does not include a

Federal mandate that may result in

estimated costs of $100 million or more

to either State, local or tribal

governments in the aggregate, or to the

private sector. These Federal actions

approve pre-existing requirements

under State or local law, and impose no

new requirements. Accordingly, no

additional costs to State, local or tribal

governments, or to the private sector,

result from these actions.

VII. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted a report containing this rule

and other required information to the

U.S. Senate, the U.S. House of

Representatives and the Comptroller of

the General Accounting Office prior to

publication of the rule in today’s

Federal Register. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

VIII. Petitions for Judicial Review

Under section 307(b)(1) of the Act,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the appropriate

circuit by June 16, 1997. 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 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, Hydrocarbons,

Incorporation by reference,

Intergovernmental relations, Nitrogen

dioxide, Particulate matter, Reporting

and record keeping requirements, Sulfur

dioxide, and Volatile organic

compounds.

Dated: February 28, 1997.

Jack W. McGraw,

Acting Regional Administrator.

Part 52, chapter I, title 40 of the Code

of Federal Regulations is amended as

follows:

PART 52—[AMENDED]

1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

Subpart G—Colorado

2. Section 52.320 is amended by

adding paragraph (c)(82) to read as

follows:

§ 52.320 Identification of plan.

* * * * *

(c) * * *

(82) The Governor of Colorado

submitted the Denver moderate

nonattainment area PM10 State

Implementation Plan (SIP) with a letter

dated March 30, 1995. The Governor

submitted revisions to Regulation No.

13, one of the control measures relied

on in the PM10 SIP, on December 22,

1995. These submittals as well as

support documentation submittals made

on June 8, 1993, June 10, 1993, June 25,

1993, July 19, 1993, August 5, 1993,

September 3, 1993, September 21, 1993,

October 20, 1993, December 12, 1993,

January 19, 1994, December 23, 1994,

March 3, 1995, and November 8, 1995

satisfy those moderate PM10

nonattainment area SIP requirements

due for the Denver PM10 nonattainment

area on November 15, 1991. EPA is

approving the SIP. This approval

replaces the previous limited approval

at 40 CFR 52.320(c)(61).

(i) Incorporation by reference.

(A) Regulation No. 4, ‘‘Regulation on

the Sale of New Woodstoves and the

Use of Certain Woodburning Appliances

During High Pollution Days,’’ 5 CCR

1001–6, as adopted by the Air Quality

Control Commission on June 24, 1993,

effective August 30, 1993.

(B) Local woodburning ordinances

and resolutions.

(1) Arvada, Colorado. Ordinance

number 2451, effective November 2,

1987, regarding woodburning

restrictions.

(2) Aurora, Colorado. Ordinance

numbers 87–118 and 92–14, effective

May 22, 1987 and May 22, 1992,

respectively, regarding woodburning

restrictions.

(3) Boulder, Colorado. Ordinance

numbers 5007 and 5445, adopted

November 25, 1986 and April 21, 1992,

respectively, regarding woodburning

restrictions.

(4) Broomfield, Colorado. Ordinance

number 794, effective November 24,

1988, regarding woodburning

restrictions.

(5) Denver, Colorado. Ordinance

numbers 293 and 1018, approved May

30, 1990 and December 16, 1993,

respectively, regarding woodburning

restrictions.

(6) Douglas County, Colorado.

Resolution number 991–128, adopted

November 14, 1991, regarding

woodburning restrictions.

(7) Englewood, Colorado. Ordinance

numbers 31 and 39, passed on July 20,

1992, regarding woodburning

restrictions.

(8) Federal Heights, Colorado.

Ordinance number 565, adopted January

5, 1988, regarding woodburning

restrictions.

(9) Glendale, Colorado. Ordinance

numbers 2 and 14, adopted January 5,

1988 and effective on October 20, 1992,

respectively, regarding woodburning

restrictions.

(10) Greenwood Village, Colorado.

Ordinance numbers 17 and 9, effective

July 9, 1988 and March 25, 1992,

respectively, regarding woodburning

restrictions.
18722 Federal Register / Vol. 62, No. 74 / Thursday, April 17, 1997 / Rules and Regulations

(11) Jefferson County, Colorado.

Resolution numbers CC89–873 and

CC90–617, dated December 29, 1989

and August 7, 1990, respectively,

regarding woodburning restrictions.

(12) Lafayette, Colorado. Ordinance

number 24; series 1988, effective

November 15, 1988, regarding

woodburning prohibitions.

(13) Lakewood, Colorado. Ordinance

numbers 0–86–113 and 0–92–61,

effective December 1, 1986 and

November 28, 1992, respectively,

regarding woodburning restrictions.

(14) Littleton, Colorado. Ordinance

numbers 51 and 26, passed on

December 6, 1988 and August 18, 1992,

respectively, regarding woodburning

restrictions.

(15) Longmont, Colorado. Ordinance

number 0–89–1, adopted December 27,

1988, regarding woodburning

restrictions.

(16) Mountain View, Colorado.

Ordinance number 90–5, approved on

January 7, 1991, regarding woodburning

restrictions.

(17) Sheridan, Colorado. Ordinance

numbers 22 and 1, approved October 25,

1988 and February 9, 1993, respectively,

regarding woodburning restrictions.

(18) Thornton, Colorado. Ordinance

numbers 2120 and 2194, adopted

October 28, 1991 and September 28,

1992, respectively, regarding

woodburning restrictions.

(19) Westminster, Colorado.

Ordinance numbers 1742 and 2092,

enacted on November 9, 1987 and

December 28, 1992, respectively,

regarding woodburning restrictions.

(C) Regulation No. 16, ‘‘Concerning

Material Specifications for, Use of, and

Clean-up of Street Sanding Material,’’ 5

CCR 1001–18, as adopted by the Air

Quality Control Commission on

September 22, 1994, effective November

30, 1994.

(D) Regulation No. 1, ‘‘Emission

Control Regulations for Particulates,

Smokes, Carbon Monoxide, and Sulfur

Oxides for the State of Colorado,’’ 5 CCR

1001–3, Sections I–IV and VI–IX, and

Appendices A and B, as adopted by the

Air Quality Control Commission on

August 19, 1993, effective October 20,

1993; with revisions to Sections VII and

VIII, adopted by the Air Quality Control

Commission on September 22, 1994,

effective November 30, 1994.

(E) Public Service Company Cherokee

facility SO2 emission limitations for the

power facility.

(1) Permit 86AD352(1), effective date

November 13, 1986, regulates SO2

emissions at Unit #1.

(2) Permit 86AD352–2, effective date

April 30, 1992, regulates SO2 emissions

at Unit #4.

(F) Purina Mills Inc. total PM10

emissions limitations at the animal feed

manufacturing facility.

(1) Permit 93AD1008–1, effective date

October 19, 1993, regulating emissions

at the finished product loadout facility.

(2) Permit 93AD1008–2, effective date

October 19, 1993, regulating emissions

at the grain receiving facility.

(G) Electron Corporation total PM10

emission limitations at the gray iron

foundry.

(1) Permit 93AR1363–1, effective date

January 12, 1994, regulating emissions

at the Table shot blaster and associated

baghouse.

(2) Permit 93AR1363–2, effective date

January 12, 1994, regulating emissions

at the five grinding booths-stand and

associated baghouse.

(3) Permit 93AR1363–3, effective date

January 12, 1994, regulating emissions

at the five grinding booths-hand and

associated baghouse.

(4) Permit 93AR1363–4, effective date

January 12, 1994, regulating emissions

at the Muller-25 sand system and

associated baghouse.

(5) Permit 93AR1363–5, effective date

January 12, 1994, regulating emissions

at the Coleman core oven-sand.

(6) Permit 93AR1363–6, effective date

January 12, 1994, regulating emissions

at the Spinner wheelabrator and

associated baghouse.

(7) Permit 93AR1363–7, effective date

January 12, 1994, regulating emissions

at the Sand sile-core room and

associated baghouse.

(8) Permit 93AR1363–8, effective date

January 12, 1994, regulating emissions

from pouring of molten iron (casting)

and castings cooling.

(9) Permit 93AR1363–9 effective date

January 12, 1994, regulating emissions

at three tumble blast machines and

associated baghouse.

(10) Permit 93AR1363–10, effective

date January 12, 1994, regulating

emissions at two mullers-80A and

associated baghouse.

(11) Permit 93AR1363–11, effective

date January 12, 1994, regulating

emissions at the Casting shakeout hood

and associated baghouse.

(12) Permit 93AR1363–12, effective

date January 12, 1994, regulating

emissions at the Casting-disamatic mold

and associated baghouse.

(13) Permit 93AR1363–13, effective

date January 12, 1994, regulating

emissions at the Sand silo-disamatic

and associated baghouse.

(14) Permit 93AR1363–14, effective

date January 12, 1994, regulating

emissions at the Sand silo-air set room

and associated baghouse.

(15) Permit 93AR1363–15, effective

date January 12, 1994, regulating

emissions at two electric induction

furnaces and associated baghouse.

(16) Permit 93AR1363–16, effective

date January 12, 1994, regulating

emissions at two Inducto-Therm electric

induction furnaces model #2000/4,

serial nos. 40102 and 40103, and

associated baghouse.

(17) Permit 93AR1363–17, effective

date January 12, 1994, regulating

emissions from chemicals used in core

making process.

(18) Permit 93AR1363–18, effective

date January 12, 1994, regulating

emissions at the Loop shakeout and

associated baghouse.

(19) Permit 93AR1363–19, effective

date January 12, 1994, regulating

emissions at the Floor shakeout and

associated baghouse.

(20) Permit 93AR1363–20, effective

date January 12, 1994, regulating

emissions at the Reclaim sand and

associated baghouse.

(21) Permit 93AR1363–21 effective

date January 12, 1994, regulating

emissions at the Sand heater/cooler and

associated baghouse.

(22) Permit 93AR1363–22, effective

date January 12, 1994, regulating

emissions at the Paint spray booth.

(H) TRIGEN-Colorado Energy

Corporation permit emissions

limitations at two boilers.

(1) Permit 10JE660, effective date

February 25, 1997, regulating emissions

at the #4 boiler: tangential fired

cogeneration steam boiler.

(2) Permit 11JE305–1, effective date

February 19, 1997, regulating emissions

at the #5 boiler: tangential fired

cogeneration steam boiler.

(I) Rocky Mountain Bottle Company

emission limitations on three furnaces.

(1) Permit 92JE129–1, effective date

June 29, 1995, regulating emissions at

the KTG glass melting furnaces #1, #2

and #3.

(J) Conoco Refinery allowable

emission limitations from the refinery.

(1) Permit 90AD524, effective date

March 20, 1991, regulating a Tulsa

natural gas fired 20MMbtu/hour heater

equipped with low-NOX burners.

(2) Permit 90AD053, effective date

March 20, 1991, regulating process

heaters H–10, H–11 and H–27 and

process boilers B4, B6, and B8 all

burning fuel gas only.

(3) Permit 91AD180–3, effective

December 28, 1992, regulating the three

stage Claus sulfur recovery unit with tail

gas recovery unit.

(ii) Additional material.

(A) Regional Air Quality Council,

‘‘Guidelines for Reducing Air Pollution

from Street Sanding’’ sets voluntary

guidelines for public works departments

to follow to reduce the amount of street
Federal Register / Vol. 62, No. 74 / Thursday, April 17, 1997 / Rules and Regulations 18723

1Corrected December 4, 1996 (61 FR 64297),

December 11, 1996 (61 FR 65187), and January 2,

1997 (62 FR 31).

sand applied, and includes

recommendations for increasing the

effectiveness of street cleaning

operations.

3. Section 52.332 is amended by

adding paragraph (f) to read as follows:

§ 52.332 Moderate PM10 Nonattainment

Area Plans.

* * * * *

(f) On March 30, 1995, and November

17, 1995, the Governor of Colorado

submitted the moderate PM10

nonattainment area plan for the Denver

area. The March 30, 1995 submittal was

made to satisfy those moderate PM10

nonattainment area SIP requirements

due for the Denver PM10 nonattainment

area on November 15, 1991. The

November 17, 1995 submittal was also

made to satisfy the PM10 contingency

measure requirements which were due

for Denver on November 15, 1993.

[FR Doc. 97–9948 Filed 4–16–97; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

49 CFR Part 571

[Docket No. 74–14; Notice 116]

RIN 2127–AG14

Federal Motor Vehicle Safety

Standards; Occupant Crash Protection

Child Restraint Systems

AGENCY: National Highway Traffic

Safety Administration (NHTSA), DOT.

ACTION: Interim final rule; request for

comments.

SUMMARY: This document amends

Standard No. 213, ‘‘Child Restraint

Systems,’’ to modify the air bag warning

label which rear-facing child seats are

required to bear beginning May 27,

1997. This document responds to a

request from Mercedes-Benz, asking that

the standard allow for additional

wording in the required text of the label.

NHTSA by this document makes final

on an interim basis the amendment

requested by Mercedes, which would

clarify the warning and which would

not lessen the safety of child restraints.

The agency also solicits comments on

this amendment. Because this

amendment will clarify the required

warning label and will relieve a

restriction currently imposed by the

standard, NHTSA has determined that it

is in the public interest to make the

changes effective immediately on an

interim basis. Assuming that a final rule

is issued, the final rule would respond

to any comments and would be effective

upon publication in the Federal

Register.

DATES: Effective April 11, 1997.

Comments must be received by June 2,

1997.

ADDRESSES: Comments should refer to

the docket and notice numbers above

and be submitted to: Docket Section,

National Highway Traffic Safety

Administration, 400 Seventh Street,

S.W., Washington, D.C. 20590. Docket

hours are 9:30 a.m. to 4 p.m., Monday

through Friday.

FURTHER INFORMATION CONTACT:

For nonlegal issues: Mary Versailles,

Office of Safety Performance

Standards, NPS–31 , telephone (202)

366–2057.

For legal issues: Deirdre Fujita, Office of

the Chief Counsel, NCC–20, telephone

(202) 366–2992.

Both can be reached at the National

Highway Traffic Safety Administration,

400 Seventh St., S.W., Washington,

D.C., 20590.

SUPPLEMENTARY INFORMATION: This

document amends Standard No. 213,

‘‘Child Restraint Systems,’’ on an

interim basis to modify the air bag

warning label which rear-facing child

seats are required to bear beginning May

27, 1997. This document also solicits

comments on this amendment. The

requirement for the label was adopted

by a November 27, 1996 final rule (61

FR 60206),1 which also adopted new

warning label requirements for vehicles

with air bags. The labels will help

reduce the adverse effects of air bags,

especially for children, by increasing

the number of people who place child

restraints in the rear seat instead of the

front.

The requirement for the enhanced

child seat label is set forth in S5.5.2(k)

of Standard 213. The requirement

specifies, among other things, the exact

content of the message that must be

provided by the label. The message of

the label must be preceded by a heading

(‘‘WARNING’’), with an alert symbol,

and state the following:

DO NOT place rear-facing child seat

on front seat with air bag.

DEATH OR SERIOUS INJURY can

occur.

The back seat is the safest place for

children 12 and under. Also required for

the label is a pictogram showing a rearfacing child seat being impacted by an

air bag, surrounded by a red circle with

a slash across it. Flexibility as to the

content of the label is not provided;

thus, additional wording is not

permitted.

On April 2, 1997, Mercedes asked

NHTSA to amend the warning label for

child restraints that meet certain

criteria. Mercedes has developed a rearfacing child restraint system that has a

device that automatically cuts off the

passenger-side air bag in vehicles

designed to respond to such a device.

Mercedes intends to market this child

restraint initially to customers

purchasing vehicles without rear seats,

and that are equipped with the cutoff

feature. The cutoff feature makes it

possible to safely use a child restraint

system on the front seat of these

vehicles without subjecting the child to

risk of injury from an air bag

deployment. While NHTSA

recommends that any child be in the

rear seat of a vehicle equipped with one,

if Mercedes later installs the cutoff

feature in vehicles with rear seat, the

cutoff feature will avoid the risk of

injury from an air bag deployment if a

rear-facing child seat in used on the

front seat. Mercedes believes that the

first statement (‘‘DO NOT place rearfacing child seat on front seat with air

bag’’) is inappropriate for child

restraints with a feature to turn off the

air bag. It could also be potentially

confusing to owners of these vehicles

who have such a child restraint, when

they have been instructed that the child

restraint will automatically deactivate

the air bag and thus can be used on the

front seat. The amendment requested by

Mercedes would amend the sentence

stating ‘‘DO NOT place rear-facing child

seat on front seat with air bag’’ by

adding the phrase ‘‘unless air bag is

off.’’

The statements on the air bag warning

label were designed to improve the

likelihood that people will read the

label, understand its message, and place

child restraint systems in the rear seat.

The required phrase ‘‘DO NOT place

rear-facing child seat on front seat with

air bag’’ is incomplete and possibly

confusing for child restraint systems,

such as the Mercedes system, that

automatically deactivate the air bag in

vehicles, since those child restraints are

intended for use on and marketed as

appropriate for front seat positions on

vehicles equipped with complimentary

air bag cutoff devices. Adding the

phrase ‘‘unless air bag is off’’ at the end

of the statement clarifies the message

and tailors it more appropriately for a

system such as the one offered by

Mercedes. Moreover, NHTSA already

permits vehicles that have manual

cutoff switches for the passenger-side