        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 300
        [EPA-HQ-SFUND-2012-0063; FRL-10009-34-Region 4]
        National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Fairfax St. Wood Treaters Superfund Site

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule; Notice of Intent.

          SUMMARY:

          The Environmental Protection Agency (EPA) Region 4 is issuing a  Notice of Intent to Delete Fairfax St. Wood Treaters Superfund Site (Site) located in Jacksonville, Florida, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Florida, through the  Florida Department of Environmental Protection (FDEP), have determined that all appropriate response actions under CERCLA, have been completed. However, this deletion does not preclude future actions under Superfund.

          DATES:
          Comments must be received by July 16, 2020.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-2012-0063, by one of the following methods:
          • https://www.regulations.gov. Follow the online instructions for submitting comments.

          Once submitted, comments cannot be edited or removed from Regulations.gov.  The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include a discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

          • Following Centers for Disease Control and Prevention (CDC) and Office of Policy Management (OPM) guidance and specific state guidelines impacting our regional offices, EPA's workforce has been authorized to telework to help prevent transmission of the coronavirus [COVID-19]. As a result there is a temporary shutdown of EPA's Docket Center and EPA Regional Records Centers. While in this workforce telework status, there are practical limitations on the ability of staff to collect, and for Agency personnel to respond to, “hard copy” mailed queries sent directly to Agency office locations. Therefore, until the workforce is able to return to office locations, EPA recommends that, to the extent feasible, any correspondence mailed to the Agency should also be sent via email.

          • For questions on this document and submission of comments please contact—Leigh Lattimore, Remedial Project Manager, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW—MS9T25, Atlanta, GA 30303,  (404) 562-8768, lattimore.leigh@epa.gov or Ron Tolliver at tolliver.ron@epa.gov.

            Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-2012-0063. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://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 https://www.regulations.gov or email. The https://www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov, your email 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, the 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 the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the 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 docket are listed in the https://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hardcopy. Publicly available docket materials are available electronically in https://www.regulations.gov.

          The EPA is temporarily suspending its Docket Center and Regional Records Centers for public visitors to reduce the risk of transmitting COVID-19. In addition, many site information repositories are closed and information in these repositories, including the deletion docket, has not been updated with hardcopy or electronic media. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

          The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID.

          FOR FURTHER INFORMATION CONTACT:

          Leigh Lattimore, Remedial Project Manager, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW—MS9T25, Atlanta, GA 30303, (404) 562-8768, email: lattimore.leigh@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Introduction
          II. NPL Deletion Criteria
          III. Deletion Procedures
          IV. Basis for Site Deletion

        I. Introduction
        EPA Region 4 announces its intent to delete the Fairfax St. Wood Treaters Superfund Site from the National Priorities List (NPL) and requests public comment on this proposed action. The NPL constitutes appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which the EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. The EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in  40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for  Fund-financed remedial actions if future conditions warrant such actions.

        The EPA will accept comments on the proposal to delete this site for thirty (30) days after publication of this document in the Federal Register.
        Section II of this document explains the criteria for deleting sites from the NPL. Section III of this document discusses procedures that the EPA is using for this action. Section IV of this document discusses where to access and review the information that demonstrates how the deletion criteria have been met at the Fairfax St. Wood Treaters Superfund Site and demonstrates how it meets the deletion criteria.
        II. NPL Deletion Criteria

        The NCP establishes the criteria that the EPA uses to delete sites from the NPL.  In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to  40 CFR 300.425(e), the EPA will consider, in consultation with the State, whether any of the following criteria have been met:
        i. Responsible parties or other persons have implemented all appropriate response actions required;
        ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
        iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
        Pursuant to CERCLA section 121(c) and the NCP, the EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. The EPA conducts such five-year reviews even if a site is deleted from the NPL. The EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
        III. Deletion Procedures
        The following procedures apply to deletion of the Site:
        (1) The EPA consulted with the State before developing this Notice of Intent to Delete.
        (2) The EPA has provided the state 30 working days for review of this document prior to publication of it today.
        (3) In accordance with the criteria discussed above, the EPA has determined that no further response is appropriate;
        (4) The State of Florida, through the Florida Department of Environmental Protection, has concurred with deletion of the Site from the NPL.

        (5) Concurrently with the publication of this Notice of Intent to Delete in the Federal Register, a notice is being published in a major local newspaper, The Florida Times-Union. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the site from the NPL.
        (6) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

        If comments are received within the 30-day public comment period on this document, the EPA will evaluate and respond appropriately to the comments before making a final decision to delete. If necessary, the EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if the EPA determines it is still appropriate to delete the Site, the Regional Administrator will publish a final Notice of Deletion in the Federal Register.  Public notices, public submissions and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and in the site information repositories listed above.
        Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
        IV. Basis for Site Deletion
        The following information provides EPA's rationale for deleting the Site from the NPL:
        Site Background and History
        The Fairfax St. Wood Treaters (FSWT) (CERCLIS ID: FLD000623041) Superfund site encompasses 12.5 acres and is located at 2610 Fairfax Street, in a predominantly residential area of Jacksonville, Duval County, Florida. Features of the FSWT facility included a burned building, parking lot, drip pad, former tank farm, and retention pond. FSWT is bordered to the north by St. Johns/CSX railroad tracks, to the east by Fairfax Street and residential properties beyond, to the south by West 14th Street and residential properties beyond, and to the west by Susie E. Tolbert and  R.V. Daniels Elementary Schools (STES) and by residential properties on Pullman Court. Moncrief Creek is located about 1,000 feet west of the FSWT property. Overflow from the FSWT retention pond flows into Moncrief Creek via a city drainage pipe, which collects stormwater from the general area.
        From 1980 to 2010, Wood Treaters, LLC operated a wood treating facility that pressure-treated utility poles, pilings, heavy timber items, and plywood lumber products using the wood treating preservative chromated copper arsenate (CCA). CCA is characterized by a bright green color and is composed of waterborne oxides, or salts, of chromium, copper, and arsenic.

        As a result of the wood treating operations and EPA's understanding of the process at the facility, some of the contaminated soil is contaminated with  Resource Conservation and Recovery Act (RCRA) Listed Hazardous Waste (F035). Under 40 CFR 261.31, F035 Listed hazardous waste is defined as “Wastewater (except those that have not come into contact with process contaminants), process residuals, preservative drippage, and spent formulations from wood preserving processes generated at plants that use inorganic preservatives containing arsenic or chromium.” Under EPA's “contained-in” policy, contaminated media (e.g., groundwater, soil, or sediments) is considered to contain RCRA hazardous waste: (1) When media is contaminated with characteristic hazardous waste and exhibits a characteristic of hazardous waste;  or (2) when the media is contaminated with hazardous constituents from  RCRA Listed Hazardous Waste. (63 FR 28617, May 26, 1998). For F035, the RCRA hazardous constituents are arsenic and chromium. If contaminated media (e.g. soil) contain Listed Hazardous Waste, then once generated (i.e., excavated from the ground) they are with limited exceptions, subject to all applicable RCRA hazardous waste requirements until EPA (or an authorized State) determine the media no longer contains hazardous waste. These RCRA requirements were identified in the ROD as “applicable or relevant and appropriate requirements” (ARARs) consistent with CERCLA  Section 121(d)(2) and the National Contingency Plan (NCP) as well as EPA guidance.  In addition, due to the elevated concentrations of arsenic and chromium in soil and residual waste in the former process area, there is a possibility that this soil/waste could be determined by the Toxicity Characteristic Leaching Procedure (TCLP) to be  RCRA Toxicity characteristic waste under 40 CFR 261.24 [D004 and D007].  Residual waste material in pipes and drains are classified as a RCRA Listed hazardous waste [F035]. Building and other man-made debris that is contaminated with this Listed hazardous waste may be hazardous debris under RCRA regulations.

        Between 1980 and 1990, there was no stormwater management system on the facility. The topography of the FSWT property and the surrounding area is generally flat; therefore, stormwater was either directed to the STES retention pond or flowed overland across the FSWT property. Uncontrolled stormwater contaminated with CCA from the wood treating process is believed to have overflowed onto neighboring properties during this time, resulting in CCA contaminated soil. In 1990, FSWT installed a stormwater collection and retention system, including site grading and paving for drainage, stormwater collection swales, diversion berms, and a polyethylene-lined retention pond.
        After 1990, stormwater that collected in the treated wood storage yard and areas other than the drip pad was diverted to ditches located along the northern, southern, and western property boundaries. These ditches drained into the retention pond at the northwestern corner of the property. An overflow pipe is located in the retention pond so that water overflows into the pipe and discharges into nearby Moncrief Creek, a tributary of the Trout River.
        Wood Treaters, LLC filed for bankruptcy in July 2010. In August 2010, after  Wood Treaters, LLC, abandoned the facility, the EPA, at the request of the FDEP, conducted emergency response (ER) activities at the facility that included pumping out the water contained in the secondary containment area and retention pond, removing product in tanks, and collecting soil, surface water, sediment, and residual waste material samples. Upon arrival, the EPA plugged the overflow pipe in the on-site retention pond to prevent contaminated water in the pond from flowing into Moncrief Creek. Once the on-site retention pond was stabilized, the plug was removed.
        In January 2011, the EPA conducted a removal investigation at the FSWT property. During the removal investigation, soil samples were collected from 17 residential properties, the STES and RVDES properties, and the FSWT property. Arsenic, chromium, and copper were detected in surface and subsurface soil samples collected from the  FSWT property.
        In July 2011, the EPA conducted a removal confirmation and residential sampling event at the FSWT property. Removal activities included excavation of gravel and soil down to 1.5 feet below land surface (bls) along the northern, western, and southern portions of the property. Between March and October 2011, the EPA conducted removal activities at the FSWT property and the adjacent STES and RVDES shared playground.
        In May 2011, the EPA conducted a site assessment investigation at the FSWT property. During the investigation, soil samples were collected along the northern and western portions of the FSWT property, along the southern FSWT property boundary, beneath the concrete that covered the majority of the FSWT property, and from nearby residential properties. Groundwater samples were also collected from monitoring wells installed by Wood Treaters, LLC throughout the property and around the STES retention pond.
        The site was proposed to be on the National Priorities List (NPL) on March 15, 2012 (77 FR 15344), and was finalized on September 18, 2012 (77 FR 57495).
        Remedial Investigation and Feasibility Study (RI/FS)
        Between 2012 and 2013, the EPA conducted a remedial investigation (RI) and risk assessment to fully characterize site contaminants, fate and transport, and receptors for all exposure routes on and off-site. Based on the Human Health Risk Assessment (HHRA) and the Screening-Level Ecological Risk Assessment (SLERA), unacceptable risks were estimated for non-residential and residential exposures to arsenic, copper, chromium, and polycyclic aromatic hydrocarbons (PAHs) on site. For off-site residential soils, the EPA believed that soils immediately adjacent to the FSWT property and nearby residential yards were contaminated by former wood treating operations conducted at the site.  The HHRA determined that several residential yards exceed EPA's acceptable risk range. It was determined that the site-related contamination migrated due to stormwater runoff and spray from the tires of the trucks leaving the site from the south, east, and west.  The EPA and FDEP decided to address all residential parcels that were impacted by site-related contamination and where arsenic concentrations are above the background concentration of 2.36 ppm.
        The SLERA also identified a risk for an avian receptor that may use the on-site retention pond as a primary food source and the sediments warrant a response action. Within Moncrief Creek, the major area of sediment contamination is located about  1,800 feet downstream of the discharge point of stormwater from the FSWT site to the creek. However, further investigation of stream sediments in Moncrief Creek located off-site was needed to determine if a response action is warranted to protect the environment. It was determined that if a response action was warranted, a focused feasibility study will be completed and the additional contaminated areas will be remediated as a second operable unit under the FSWT site.
        The Feasibility Study evaluated excavation and off-site disposal and with different treatment options for soils considered RCRA hazardous. The future anticipated land use is residential. Cleanup concentrations were developed to be protective of human health and are based on future anticipated land use.
        Selected Remedy
        EPA chose excavation and off-site treatment and disposal as the best option for the remedial action at the site. The Record of Decision (ROD) was signed on  August 22, 2017. The major components of the remedy included excavation of the  12.5 area parcel, sediment in the on-site retention pond, and off-site properties.  In addition to excavation, the remedy included temporary storage of generated waste,  off-site disposal at EPA approved landfills, backfilling and restoration activities.  The Remedial Action Objectives were: (1) Prevent human exposure (direct contact and ingestion) to on-site soil with concentrations of COCs above levels protective of residential use; (2) Prevent migration of contaminated stormwater runoff from the FSWT site to adjacent properties and Moncrief Creek; (3) Prevent unacceptable risk to ecological receptors (benthic organisms and avian) from contaminated sediments and surface water in the on-site retention pond; (4) Prevent direct contact with residual waste material and contaminated building structures located on the site, including the drip pad and process containment areas; and (5) Prevent off-site residential human exposure (direct contact and ingestion) to soil with concentrations of arsenic above levels protective of residential use.
        Response Actions
        In accordance with the ROD, a pre-design field investigation was performed to fill data gaps at the school property and at residential properties east of the FSWT Site for arsenic concentrations and to provide additional site-specific information needed to develop the RD.
        Three residential properties were sampled consistent with the RI sampling.  Two of the properties exceeded the arsenic cleanup level.

        STES delineation soil samples were collected on March 20, 2018 and June 12 through June 14, 2018. Arsenic concentrations exceeded the cleanup level. The EPA and FDEP recognized the potential concern of the parents and community and worked together to address the impacted soil as soon as possible. Since the EPA did not have RA funding, FDEP mobilized, removed, and disposed of offsite the impacted soil during the summer break when students were not present. This facilitated a component of the selected remedy.
        Starting on July 9, 2018, the FDEP, started collecting additional soil samples for delineation of the area needing removal on the STES. Excavation activities occurred from July 16, 2018 through August 12, 2018, and were completed in 25 days. Approximately 3,360 tons of soil was removed from the school property during the excavation activities. The excavated area was backfilled and restored.
        The Remedial Action began in February 2019 and construction activities were completed in October 2019. The 51 residential properties, the 12.5-acre property, and the on-site retention pond were remediated and restored. The EPA contractor excavated, stockpiled, and disposed of roughly 67,000 tons of excavated soils and sediments at EPA approved RCRA facilities. The EPA also collected confirmation samples from the floors and sidewalls of excavation areas and continued excavating soil if confirmation samples exceeded cleanup levels.
        In July 2019, the EPA collected sediment samples, fish, insects, and crayfish along Moncrief Creek to address uncertainties raised in the SERLA. The analyses of the data concluded that site-related contaminants (arsenic, copper, chromium) are not likely to be appreciable contributors to the toxicity levels observed in the sediment toxicity tests from sediment samples from the retention basin and that site-related metals contamination in the Moncrief Creek retention basin is not likely to cause appreciable or unacceptable risks to ecological receptors that may feed at the Moncrief Creek retention basin. Therefore, it was determined the EPA would not take a response action on  Moncrief Creek.
        The completion of Remedial Action was documented in the Final Remedial Action Report and documented in a Superfund Remedial Action Completion memorandum signed on March 11, 2020 (Superfund Enterprise Management System (SEMS) document identification number 11143607). The reports and the memorandum are available in the deletion docket and they describe the cleanup techniques, cleanup concentrations for COCs, confirmation testing results, and QA/QC methodologies.
        Cleanup Levels
        Except for arsenic, the cleanup levels for the on-site and off-site contaminated surface soils are based on FDEP's SCTLs for direct exposure and residential use (Florida Administrative Code [F.A.C.] 62-777 Table II). These SCTLs are identified as chemical-specific ARARs. Neither EPA (as a policy matter) nor Florida set cleanup levels for an individual contaminant that is more stringent than the site-specific background concentration for that contaminant, provided that the background level is protective of human health and the environment. Therefore, the EPA used the site-specific background level of 2.36 ppm for arsenic instead of the FDEP SCTL. The cleanup levels for sediments are based on Florida's sediment quality assessment guidelines for the protection of sediment-dwelling organisms. The cleanup levels can be found in the Record of Decision (SEMS 11054367)
        Operation and Maintenance
        Since the RA cleanup levels achieved unlimited use and unrestricted exposure (UU/UE), there is no need for Operation and Maintenance (O&M). However, the owner of the property should employ good housing keeping practices to ensure proper drainage of stormwater from the site and should include routine inspection of all site areas for evidence of positive drainage towards the site ditches and retention pond, routine mowing of site grass, routine removal of debris and vegetation other than grass from the ditches and retention pond, and routine inspection and removal of any debris, vegetation or other obstruction from the pond inlet structures and pipes.
        Five-Year Review
        Hazardous substances, pollutants, or contaminants will not remain at the Site above levels that allow for UU/UE after completion of all remedial action construction. Therefore, a statutory five-year review under CERCLA Section 121(c) will not be required for this remedial action.
        Community Involvement
        The EPA held numerous community meetings before and during the residential cleanup. The EPA issued fact sheets and maintained a public website during remedial construction. After the cleanup was complete, the EPA released final fact sheets and held a final availability session to highlight the accomplishment and answer any questions and concerns.
        All EPA documents are on the site's public website. A notice is being published in a major local newspaper, the Florida Times-Union and postcards have been sent out notifying the pubic of the deletion.
        Determination That the Site Meets the Criteria for Deletion in the NCP
        The EPA has followed all procedures required by 40 CFR 300.425(e), Deletion from the NPL. The EPA consulted with the State of Florida prior to developing this document. The EPA determined that both the EPA and FDEP have conducted all appropriate response actions required and that no further response action for this portion of the Site is appropriate. The EPA is publishing a notice in a major local newspaper, The Florida Times-Union, of its intent to partially delete the Site and how to submit comments.  The EPA placed copies of documents supporting the proposed partial deletion in the Site information repository; these documents are available for public inspection and copying.
        The implemented remedy achieved the degree of cleanup and protection specified in the ROD. The selected remedial action objectives and associated cleanup levels for the surface soil are consistent with agency policy and guidance. Based on information currently available to the EPA, no further Superfund response in the area proposed for deletion is needed to protect human health and the environment.

          List of Subjects in 40 CFR Part 300
          Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

          Authority:
          33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

          Dated: June 4, 2020.
          Mary S. Walker,
          Regional Administrator, Region 4.

      [FR Doc. 2020-12692 Filed 6-15-20; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 533
        [Docket No. NHTSA-2001-11048]
        RIN 2127-AI68
        Light Truck Average Fuel Economy Standard, Model Year 2004

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), DOT.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          This document proposes to establish the corporate average fuel economy standard for light trucks manufactured in model year (MY) 2004. The establishment of the standard is required by statute. The proposed standard is 20.7 mpg.

          DATES:
          Comments must be received on or before February 25, 2002. The comment period has been shortened due to a statutory deadline.

          ADDRESSES:

          You should mention the docket number of this document in your comments and submit your comments in writing to: Docket Management, Room PL-401, 400 Seventh Street, S.W., Washington, D.C., 20590. Comments may also be submitted to the docket electronically by logging onto the Dockets Management System website at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically. You may call Docket Management at 202-366-9324. You may visit the Docket from 10:00 a.m. to 5:00 p.m., Monday through Friday.

          FOR FURTHER INFORMATION CONTACT:

          For non-legal issues, call Ken Katz, Office of Planning and Consumer Programs, at (202) 366-0846, facsimile (202) 493-2290, electronic mail kkatz@nhtsa.dot.gov. For legal issues, call Otto Matheke, Office of the Chief Counsel, at 202-366-5263.

        SUPPLEMENTARY INFORMATION:
        I. Background
        In December 1975, during the aftermath of the energy crisis created by the oil embargo of 1973-74, Congress enacted the Energy Policy and Conservation Act. The Act established an automotive fuel economy regulatory program by adding Title V, “Improving Automotive Efficiency,” to the Motor Vehicle Information and Cost Saving Act. Title V was amended from time to time, and was codified without substantive change as Chapter 329 of Title 49 of the United States Code. Chapter 329 provides for the issuance of average fuel economy standards for passenger automobiles and automobiles that are not passenger automobiles (light trucks).
        Section 32902(a) of Chapter 329 states that the Secretary of Transportation shall, at least eighteen months prior to the beginning of each model year, prescribe by regulation corporate average fuel economy (CAFE) standards for light trucks for that model year. That section also states that “[e]ach standard shall be the maximum feasible average fuel economy level that the Secretary decides the manufacturers can achieve in that model year.” (The Secretary has delegated the authority to implement the automotive fuel economy program to the Administrator of NHTSA. 49 CFR 1.50(f).) Section 32902(f) provides that, in determining the maximum feasible average fuel economy level, we shall consider four criteria: technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy. Using this authority, we have set light truck CAFE standards through MY 2003. See 49 CFR 533.5(a). The standard for MY 2003 is 20.7 miles per gallon (mpg)(66 FR 17513; April 12, 2001).
        From 1995 through mid-December 2001, the standards-setting process for light truck CAFE standards was affected by restrictions imposed in the Department of Transportation's annual Appropriations Acts.
        On November 15, 1995, the Department of Transportation and Related Agencies Appropriations Act for FY 1996 was enacted. Public Law 104-50. Section 330 of that Act provides:

          None of the funds in this Act shall be available to prepare, propose, or promulgate any regulations . . . prescribing corporate average fuel economy standards for automobiles . . . in any model year that differs from standards promulgated for such automobiles prior to enactment of this section.

        We then issued a notice of proposed rulemaking (NPRM), limited to MY 1998, that proposed to set the light truck CAFE standard for that year at 20.7 mpg, the same standard as had been set for MY 1997. 61 FR 145 (January 3, 1996). We adopted this 20.7 mpg-standard in a final rule issued on March 29, 1996. 61 FR 14680 (April 3, 1996).
        On September 30, 1996, the Department of Transportation and Related Agencies Appropriations Act for FY 1997 was enacted. Pub. L. 104-205. Section 323 of that Act provides:

          None of the funds in this Act shall be available to prepare, propose, or promulgate any regulations . . . prescribing corporate average fuel economy standards for automobiles . . . in any model year that differs from standards promulgated for such automobiles prior to enactment of this section.

        On March 31, 1997, we issued a final rule (62 FR 15859) establishing light truck fuel economy standards for MY 1999. This final rule was not preceded by an NPRM. The agency concluded that the restriction contained in Section 323 of the FY 1997 Appropriations Act prevented us from issuing any standards at a level other than the standard set for MY 1998. Because we had no other course of action, we determined that issuing an NPRM was unnecessary and contrary to the public interest.
        Because the same limitation on the setting for CAFE standards was included in the appropriations acts for FYs 1998-2001, we followed that same procedure during those fiscal years and did not issue any NPRMs in the series of rulemakings we conducted to establish the light truck fuel economy standards for MYs 2000-2003. The agency concluded in those rulemakings, as it had when setting the MY 1999 standard, that the restrictions contained in the appropriations acts prevented us from issuing any standards other than the standard set for the prior model year. We also determined that issuing an NPRM was unnecessary and contrary to the public interest because we had no other course of action.
        The Department of Transportation and Related Agencies Appropriations Act for FY 2001 was enacted on October 23, 2000. Public Law 106-346. This law provided appropriations for the Department of Transportation for FY 2001, and is the law under which we issued the light truck CAFE standard for MY 2003. While Section 320 of that Act contains a restriction on CAFE rulemaking identical to that contained in prior appropriation acts, the Conference Committee Report for that Act directed the National Academy of Sciences (NAS) to conduct a study to evaluate the effectiveness and impacts of CAFE standards (H.R. Conf. Rep. No. 106-940, at 117-118).
        The NAS submitted its report to the Department of Transportation on July 30, 2001. The report contains a number of key findings and recommendations. The Department of Transportation is in the process of evaluating and responding to the issues raised by the report. With regard to this proposal, however, it is important to note that the NAS also found that any policy change that is implemented in too short a period of time has the potential to adversely affect manufacturers, their suppliers, their employees, and consumers.
        The series of restrictions on appropriations ended with the enactment of the Department of Transportation and Related Agencies Appropriations Act for FY 2002 on December 18, 2001. Public Law 107-87. The FY 2002 Appropriations Act, unlike the appropriations acts for fiscal years 1996-2001, does not prevent NHTSA from expending funds to prepare, propose or promulgate fuel economy standards. Accordingly, for the first time since 1995, NHTSA is authorized to expend funds to establish fuel economy standards for non-passenger automobiles at the maximum feasible average fuel economy level in accordance with section 32902(a) of Chapter 329.

        The availability of these funds does not, as a practical matter, translate into an effective ability to conduct its customary level of analysis of potential MY 2004 light truck fuel economy standards. NHTSA cannot delay the beginning of rulemaking to establish the MY 2004 standard to provide time for that analysis. As noted above, NHTSA must establish the fuel economy standard for a given model year at least 18 months before that model year begins. In the case of MY 2004, this statutory deadline requires NHTSA to issue a fuel economy standard on or before April 1, 2002. As the agency was unable, from 1995 until mid-December 2001, to spend any funds for the collection and analysis of data relating to CAFE levels, it has not been able to lay the factual or analytical foundation necessary to develop a proposed standard other than one at 20.7 mpg, the level of the MY 1996-2003 standards.
        II. Agency Proposal
        The agency is proposing to establish the MY 2004 fuel economy standard for all light trucks manufactured by a manufacturer at 20.7 mpg, the same level previously adopted for MY 2003. The agency's proposal reflects the absence of any current information or analysis regarding the impact of any change in CAFE standards and the capabilities of manufacturers.
        The agency is inviting comments, however, on the maximum feasible level of average fuel economy, including comments as to whether motor vehicle manufacturers can, with the limited leadtime available and product plans essentially established, achieve a level higher than 20.7 mpg in MY 2004. In establishing CAFE standards, NHTSA is commanded by section 32902(f) to determine the maximum feasible average fuel economy after considering technological feasibility, economic practicability, the effect of other Government motor vehicle standards on fuel economy, and the need of the United States to conserve energy. NHTSA has traditionally performed the analysis required by section 32902(f) through the publication of requests for information (similar to the one published concurrently with this notice) seeking data from manufacturers and other interested parties regarding technical capabilities, future product plans, anticipated model mix, impact of safety and emissions regulations, the economic impacts of changes in fuel economy standard, the need of the nation to conserve energy and other factors. Once these data are obtained, the agency traditionally assesses the accuracy of manufacturer projections, the likelihood that certain technical innovations may increase fuel efficiency, the potential impact of consumer demand on the composition of manufacturer fleets, the capability of different manufacturers to attain a minimum levels of fuel efficiency, and the effects of weight and other penalties imposed by changes in safety and emissions standards. While this process must be considerably compressed due to the limited time remaining for setting the MY 2004 standard, we will nonetheless consider all comments, including comments with data and analysis suggesting a level higher or lower than 20.7 mpg.
        III. Impact Analyses
        A. Economic Impacts

        This proposal rule was reviewed by the Office of Management and Budget under Executive Order 12866, Regulatory Planning and Review. Although our proposed standard for MY 2004 does not differ from the fuel economy standards for the preceding model years, we are treating this rule as “economically significant” under Executive Order 12866 and “major” under the Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996. This proposal is also considered significant under the Department's regulatory policies and procedures.
        As noted above, the agency has been operating under a restriction on the use of appropriations for the last six fiscal years. The restriction has prevented the agency from gathering and analyzing data relating to fuel economy capabilities and the costs and benefits of improving the level of fuel economy. Particularly since that restriction was lifted only very recently, on December 18, 2001, the agency has been unable to prepare an economic analysis for this rulemaking.
        B. Environmental Impacts
        C. Energy Impacts
        NHTSA is not proposing to change the light truck CAFE standard for the 2004 model year. Assuming that this proposal is adopted in a final rule, this action will not have “a significant adverse effect on the supply, distribution, or use of energy,” as defined by Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. At this point, therefore, this action is not a “significant energy action” under Executive Order 13211 and no “Statement of Energy Effects” is required.
        D. Impacts on Small Entities
        Pursuant to the Regulatory Flexibility Act, the agency has considered the impact this rulemaking would have on small entities. I certify that this action would not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis is not required for this action. Few, if any, light truck manufacturers subject to the proposed rule would be classified as a “small business” under the Regulatory Flexibility Act.
        The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires each agency to evaluate the potential effects of a rule on small businesses. Establishment of a fuel economy standard for light trucks affects motor vehicle manufacturers, few of which are small entities. The Small Business Administration (SBA) has set size standards for determining if a business within a specific industrial classification is a small business. The Standard Industrial Classification code used by the SBA for Motor Vehicles and Passenger Car Bodies (3711) defines a small manufacturer as one having 1,000 employees or fewer.
        Very few single stage manufacturers of motor vehicles within the United States have 1,000 or fewer employees. Those that do are not likely to have sufficient resources to design, develop, produce and market a light truck. For this reason, we certify that this proposal regarding the corporate average fuel economy of light trucks would not have a significant economic impact on a substantial number of small entities.
        E. Federalism
        E.O. 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” E.O. 13132 defines the term “Policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under E.O. 13132, NHTSA may not issue a regulation that has federalism implication, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation.

        This proposal would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in E.O. 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this proposal.
        F. The Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. For the same reasons discussed in the section above on economic impacts, the agency has been unable to prepare an assessment.
        G. Paperwork Reduction Act
        There are no information collection requirements in this proposal.
        H. Regulation Identifier Number (RIN)
        The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
        I. Plain Language
        Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
        —Have we organized the material to suit the public's needs?
        —Are the requirements in the proposal clearly stated?
        —Does the proposal contain technical language or jargon that is not clear?
        —Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
        —Would more (but shorter) sections be better?
        —Could we improve clarity by adding tables, lists, or diagrams?
        —What else could we do to make the proposal easier to understand?
        If you have any responses to these questions, please forward them to Otto Matheke, Office of Chief Counsel, National Highway Traffic Safety Administration, 400 Seventh Street, S.W., Washington, DC 20590.
        J. Executive Order 13045
        Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be economically significant as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.
        This rulemaking does not have a disproportionate effect on children. The primary effect of this rulemaking is to conserve energy resources by setting a fuel economy standard for light trucks.
        K. National Technology Transfer and Advancement Act
        Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards 1
           in its regulatory activities unless doing so would be inconsistent with applicable law (e.g., the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. In meeting that requirement, we are required to consult with voluntary, private sector, consensus standards bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.

            1 Voluntary consensus standards are technical standards developed or adopted by voluntary consensus standards bodies. Technical standards are defined by the NTTAA as “performance-based or design-specific technical specifications and related management systems practices.” They pertain to “products and processes, such as size, strength, or technical performance of a product, process or material.”

        We are not aware of any available and potentially applicable voluntary consensus standards, i.e., ones regarding the maximum feasible level of corporate average fuel economy for MY 2004 light trucks. Therefore, this proposal is not based on any voluntary consensus standards.
        L. Department of Energy Review
        In accordance with 49 U.S.C. 32902(j), we submitted this proposal to the Department of Energy for review. That Department did not make any comments that we have not responded to.
        IV. Comments
        Submission of Comments
        How Can I Influence NHTSA's Thinking on This Proposed Rule?
        In developing our rules, we try to address the concerns of all our stakeholders. Your comments will help us improve this rule. We invite you to provide views on our proposal, new data, a discussion of the effects of this proposal on you, or other relevant information. We welcome your views on all aspects of this proposed rule. Your comments will be most effective if you follow the suggestions below:
        • Explain your views and reasoning as clearly as possible.
        • Provide solid technical and cost data to support your views.
        • If you estimate potential costs, explain how you arrived at the estimate.
        • Provide specific examples to illustrate your concerns.
        • Offer specific alternatives.
        • Be sure to include the name, date, and docket number with your comments.
        How Do I Prepare and Submit Comments?
        Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
        Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

        Please submit two copies of your comments, including the attachments, to Docket Management at the address given above under ADDRESSES.Comments may also be submitted to the docket electronically by logging onto the Dockets Management System website at http://dms.dot.gov. Click on “Help & Information” or “Help/Info” to obtain instructions for filing the document electronically.
        How Can I Be Sure That My Comments Were Received?

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

        If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR Part 512.)
        Will the Agency Consider Late Comments?
        We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider it in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.
        How Can I Read the Comments Submitted by Other People?

        You may read the comments received by Docket Management at the address given above under ADDRESSES. The hours of the Docket are indicated above in the same location.
        You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

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

        (2) On that page, click on “search.”
        (3) On the next page (http://dms.dot.gov/search/), type in the four-digit docket number shown at the beginning of this document. Example: If the docket number were “NHTSA-1998-1234,” you would type “1234.” After typing the docket number, click on “search.”
        (4) On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments. The “pdf” versions of the documents are word searchable.
        Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material.
        Plain Language
        Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
        —Have we organized the material to suit the public's needs?
        —Are the requirements in the rule clearly stated?
        —Does the rule contain technical language or jargon that is not clear?
        —Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
        —Would more (but shorter) sections be better?
        —Could we improve clarity by adding tables, lists, or diagrams?
        —What else could we do to make the rule easier to understand?
        If you have any responses to these questions, please include them in your comments on this proposal.
        V. Conclusion
        Based on the foregoing, we are proposing to establish the combined average fuel economy standard for non-passenger automobiles (light trucks) for MY 2004 at 20.7 mpg.

          List of Subjects in 49 CFR Part 533
          Energy conservation, Fuel economy, Motor vehicles.

        In consideration of the foregoing, 49 CFR Part 533 is amended as follows:

          PART 533—[AMENDED]
          1. The authority citation for part 533 continues to read as follows:

            Authority:
            49 U.S.C. 32902; delegation of authority at 49 CFR 1.50.

          2. Section 533.5 is amended by revising Table IV in paragraph (a) to read as follows:

            § 533.5
            Requirements.
            (a) * * *

              Table IV

                Model year
                Standard

                1996
                20.7

                1997
                20.7

                1998
                20.7

                1999
                20.7

                2000
                20.7

                2001
                20.7

                2002
                20.7

                2003
                20.7

                2004
                20.7

            Issued on: January 17, 2002.
            Stephen R. Kratzke,
            Associate Administrator for Safety Performance Standards.

      [FR Doc. 02-1675 Filed 1-18-02; 12:25 pm]
      BILLING CODE 4910-59-P