        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 595
        [Docket No. NHTSA-2012-0078]
        RIN 2127-AL19
        Make Inoperative Exemptions; Retrofit On-Off Switches for Air Bags

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

          ACTION:
          Notice of proposed rulemaking (NPRM).

          SUMMARY:
          There is a NHTSA regulation that permits motor vehicle dealers and repair businesses to install retrofit on-off switches for air bags in vehicles owned by or used by persons whose request for a switch has been approved by the agency. This regulation is only available for motor vehicles manufactured before September 1, 2012. In this document, the agency proposes to extend the availability of this regulation for three additional years, so that it would apply to motor vehicles manufactured before September 1, 2015.

          DATES:
          Comments must be received on or before July 9, 2012.

          ADDRESSES:
          You may submit comments to the docket number identified in the heading of this document by any of the following methods:
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Mail: Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
          • Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except Federal holidays.
          • Fax: 202-493-2251.

          Regardless of how you submit your comments, you should mention the docket number of this document.
          You may call the Docket at 202-366-9324.

            Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act discussion below.

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

          FOR FURTHER INFORMATION CONTACT:

            For non-legal issues: Ms. Carla Rush, Office of Crashworthiness Standards, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone 202-366-4583, fax 202-493-2739).

            For legal issues: Mr. Edward Glancy, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone 202-366-2992, fax 202-366-3820).

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Background
          II. Agency Analysis and Proposal
          III. Shortened Comment Period
          IV. Rulemaking Analyses and Notices
          V. Public Participation

        I. Background
        To prevent or mitigate the risk of injuries or fatalities in frontal crashes, Federal Motor Vehicle Safety Standard (FMVSS) No. 208, “Occupant crash protection” (49 CFR 571.208), requires that vehicles be equipped with seat belts and frontal air bags.
        In the 1990s, while air bags proved to be highly effective in reducing fatalities from frontal crashes, they were found to cause a small number of fatalities, especially to unrestrained, out-of-position children, in relatively low speed crashes. It was shown that the majority of these fatalities occurred because the occupants were very close to or made contact with the air bag when it started to deploy.1
           The other cause of the air bag fatalities at the time was the aggressive design of some air bags.

            1 See preamble to agency final rule on advanced air bags, 65 FR 30680, 30682-83, May 12, 2000.

        To address this problem, NHTSA developed a plan that included an array of immediate, interim and long-term measures. The immediate and interim measures focused on behavioral changes and relatively modest technological changes (e.g., consumer education on air bags and the importance of seat belts and putting children in the rear; amending FMVSS No. 208 to allow for a limited time a sled test option for expediting the depowering of air bags, etc.). The long-term measures focused on more significant technological changes, i.e., advanced air bag technologies.

        As one of the interim measures, on November 21, 1997, NHTSA published in the Federal Register (62 FR 62406) a final rule permitting motor vehicle dealers and repair businesses to install retrofit on-off switches for frontal air bags in vehicles owned by or used by persons whose request for a switch had been approved by the agency (subpart B of 49 CFR part 595). This rule provided a limited exemption from a statutory provision that generally prohibits motor vehicle dealers and repair businesses from making inoperative any part of a device or element of design installed on or in a motor vehicle or motor vehicle equipment in compliance with an applicable FMVSS.2

            2 The “make inoperative” provision is at 49 U.S.C. 30122.

        Under the procedures set forth in the 1997 rule, vehicle owners can request a retrofit air bag on-off switch by completing an agency request form (Appendix B of Part 595) and submitting the form to the agency. Owners must certify that they have read the information brochure, in Appendix A of Part 595, discussing air bag safety and risks. The brochure describes the steps that the vast majority of people can take to minimize the risk of serious injuries from air bags while preserving the benefits of air bags, without going to the expense of buying an on-off switch. The agency developed the brochure to enable owners to determine whether they are, or a user of their vehicle is, in one of the groups of people at risk of a serious air bag injury and to make a careful, informed decision about requesting an on-off switch.3
           Owners also must certify that they or another user of their vehicle is a member of one of the risk groups. Since the risk groups for drivers are different from those for passengers, a separate certification must be made on the request form for each frontal air bag to be equipped with a retrofit air bag on-off switch.

            3 At NHTSA's request, an expert panel of physicians convened to formulate recommendations on specific medical indications for air bag deactivation. The panel concluded that air bags are effective lifesavers and that a medical condition does not warrant turning off an air bag unless the condition makes it impossible for a person to maintain an adequate distance from the air bag. Specifically, the panel recommended disconnecting an air bag if a safe sitting distance or position cannot be maintained by a: driver or front passenger because of scoliosis, osteoporosis/arthritis; driver because of achondroplasia; or passenger because of Down syndrome and atlantoaxial instability. The panel also warranted the disconnection of air bags if the need for wheelchair related modifications made it necessary or if there is a medical condition that requires an infant or child to be placed in the front passenger seat for monitoring purposes. (The Ronald Reagan Institute of Emergency Medicine Department of Emergency Medicine and The National Crash Analysis Center, “National Conference on Medical Indications for Air Bag Disconnection,” July 16-18, 1997.)

        If NHTSA approves a request, the agency will send the owner a letter authorizing the installation of one or more on-off switches in the owner's vehicle. The owner may give the authorization letter to a dealer or repair business, which may then install an on-off switch for the driver or passenger air bag or both, as approved by the agency. The retrofit air bag on-off switch must meet certain criteria, such as being equipped with a telltale light to alert vehicle occupants when an air bag has been turned off. The dealer or repair business must then fill in information about itself and its installation in a form in the letter and return the form to the agency.
        In the November 1997 air bag on-off switch final rule, the agency indicated that it believed, based on safety considerations, that it should prohibit dealers and repair businesses from retrofitting advanced air bag vehicles with on-off switches, but that it would address this issue in the forthcoming rulemaking on advanced air bags (62 FR at 62432-33).
        On May 12, 2000, NHTSA published in the Federal Register (65 FR 30680) its final rule to require advanced frontal air bags. The rule required that future air bags be designed to reduce the risk of serious air bag-induced injuries compared to then-current air bags, particularly for small-statured women and young children; and provide improved frontal crash protection for all occupants, by means that include advanced air bag technology. To achieve these goals, it added a wide variety of new requirements, test procedures, and injury criteria, using an assortment of new test dummies.
        In the preamble to the May 2000 advanced air bag final rule, the agency decided to continue the exemption procedures for retrofit air bag on-off switches for vehicles manufactured through August 31, 2012. This provided time to allow manufacturers to perfect the suppression and low-risk deployment systems for air bags in all of their vehicles. It also provided a number of years to verify the reliability of advanced air bags based on real-world experience.
        NHTSA also indicated in the advanced air bag final rule that there would be a need for deactivation of some sort (via on-off switch or permanently) for at-risk individuals who cannot be accommodated through sensors or other suppression technology (such as handicapped individuals or individuals with certain medical conditions). The agency stated at that time that it believed such needs could be best accommodated through the authorization system for deactivation of air bags in current use by NHTSA (65 FR at 30722).

        Also, on February 27, 2001, NHTSA published a final rule in the Federal Register (66 FR 12638) providing a limited exemption from the make inoperative prohibition, covering various provisions in a number of safety standards, to facilitate the mobility of persons with disabilities. The exemption permits repair businesses to modify certain types of federally required safety equipment and features, under specified circumstances. This disability exemption, which is in subpart C of part 595, permits the installation of air bag on-off switches or the permanent disconnection of air bags in certain, significantly more limited circumstances than provided for in subpart B of that part.
        II. Agency Analysis and Proposal
        Since the introduction of advanced air bags, and even before that time, air bag-related fatalities have significantly declined. There have not been any confirmed air-bag-related child fatalities in model year 2004 or later vehicles. There have been two confirmed air-bag-related adult fatalities in model year 2004 or later vehicles.4

            4 “Counts of Frontal Air Bag Related Fatalities and Seriously Injured Persons,” Special Crash Investigations, DOT HS 811 104, January 2009. We note that although this report identifies three confirmed air-bag-related adult fatalities in model year 2004 or later vehicles it has come to our attention that one of these cases was miscoded.

        However, as NHTSA recognized in the preamble to the advanced air bag final rule, there may still be a need for deactivation of air bags (via a switch or permanent deactivation) beyond September 1, 2012, for at-risk individuals who cannot be accommodated through the advanced air bag technology. Therefore, the agency has decided that it may be appropriate to propose extending the on-off switch provisions of Part 595 subpart B, for some risk groups despite the presence of advanced air bag technology.
        To permit the agency time to thoroughly evaluate this issue, and potentially conduct rulemaking for an updated version of subpart B, we are proposing to extend the current subpart B provisions for three years. As discussed above, the regulation currently permits motor vehicle dealers and repair businesses, for motor vehicles manufactured before September 1, 2012, to install retrofit on-off switches for air bags in vehicles owned by or used by persons whose request for a switch has been approved by the agency. We are proposing to extend that date so the provision would apply to motor vehicles manufactured before September 1, 2015.
        With the proposed three year extension, the agency plans to evaluate several aspects of the air bag on-off switch rule. Mainly, the agency will evaluate the criteria for granting the retrofit on-off switches (at-risk groups) in light of the existence of advanced air bag technology, and the retrofit switch brochures and forms that were included in part 595. The agency will also consider other topics that have arisen over the years such as our continued use of prosecutorial discretion for circumstances not covered by part 595 (e.g., the application of retrofit switches for emergency and law enforcement vehicles).
        Given the imminence of the September 1, 2012 date, it would not be possible for us to complete the necessary evaluation and possible rulemaking before that time. We are therefore proposing the three-year extension, to maintain the current procedures during this time period. This will avoid a situation where retrofit on-off switches would not be available for vehicles manufactured during this time period, while the agency is considering further rulemaking that could permanently allow retrofit on-off air bag switches in specified circumstances. The agency expects to be able to fully analyze the issues surrounding such a rulemaking within those three additional years.

        We have tentatively concluded that a three-year extension is in the interest of motor vehicle safety. This extension would prevent a potential gap in the regulation and avoid any complications and confusion that could arise if the subpart B exemption for retrofit on-off air bag switches were allowed to sunset and then, later on, the agency decided to maintain the exemption (in some form) permanently.

        III. Shortened Comment Period
        Given the short time period between now and the September 1, 2012 date, we are providing a 30-day comment period. We believe this shortened comment period is appropriate because we are proposing a relatively short-term extension of an existing exemption.
        IV. Rulemaking Analyses and Notices
        A. Executive Order (E.O.) 12866, E.O. 13563, and DOT Regulatory Policies and Procedures
        NHTSA has considered the impact of this rulemaking action under Executive Orders 12866 and 13563, and the Department of Transportation's regulatory policies and procedures (44 FR 11034; February 26, 1979). This action was not reviewed by the Office of Management and Budget under these executive orders. It is not considered to be significant under the Department's regulatory policies and procedures.
        This document proposes to delay the sunset date of an existing exemption for retrofit on-off switches for frontal air bags. They are currently available, under specified circumstances, for vehicles manufactured before September 1, 2012. We are proposing to extend that date so that they will be available for vehicles manufactured before September 1, 2015.
        The proposed rule would not require a motor vehicle manufacturer, dealer or repair business to take any action or bear any costs except in instances in which a dealer or repair business agrees to install an on-off switch for an air bag. For consumers, the purchasing and installation of on-off switches is permissive, not prescriptive.
        When an eligible consumer obtains the agency's authorization for the installation of a retrofit on-off switch and a dealer or repair business agrees to install the switch, there will be costs associated with that action. The agency estimates that the installation of an on-off switch would typically require less than one hour of shop time, at the average national labor rate of approximately $80 per hour. NHTSA estimates that the cost of an air bag on-off switch for one seating position is $51 to $84 and the cost of an on-off switch for two seating positions is $68 to $101. The agency estimates that approximately 500 air bag on-off switch requests are received and authorized annually. However, we are uncertain about how many people actually pay to get them installed after we authorize it. Given the relatively low number of vehicle owners who will ultimately get the retrofit air bag on-off switches installed and the above estimated costs, the annual net economic impact of the actions taken under this proposed rule will not exceed $100 million per year.
        Moreover, given the above, the fact that this has been a longstanding exemption available for consumers and since the agency is merely proposing to extend the availability of this exemption for an additional three years of vehicle production, the impacts are so minimal that a full regulatory evaluation is not needed.
        B. Regulatory Flexibility Act
        The Regulatory Flexibility Act of 1980, as amended, requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations and small governmental jurisdictions. I hereby certify that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposal would merely extend the sunset provision in Part 595.5. No other changes are being proposed in this document. Small organizations and small governmental units will not be significantly affected since the potential cost impacts associated with this action will be insignificant.
        C. Executive Order 13132 (Federalism)
        NHTSA has examined today's proposed rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposed rule 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.” Today's proposed rule would not impose any additional requirements. Instead, it would delay the sunset date of an existing exemption for retrofit on-off switches for frontal air bags, thereby lessening burdens on the exempted entities.
        NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: when a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance. However, this provision is not relevant to this proposed rule as this proposal does not involve the establishing, amending or revoking of a Federal motor vehicle safety standard.
        The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted.

        This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

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

        To this end, the agency has examined the nature (e.g., the language and structure of the regulatory text) and objectives of today's proposed rule and finds that this proposed rule would increase flexibility for certain exempted entities. As such, NHTSA does not intend that this proposed rule would preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that would be established by today's proposed rule. Establishment of a higher standard by means of State tort law would not conflict with the exemption proposed here. Without any conflict, there could not be any implied preemption of a State common law tort cause of action. Further, we are unaware of any State law or action that would prohibit the actions that this proposed exemption would permit.
        D. Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995). UMRA also requires an agency issuing a final rule subject to the Act to select the “least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule.” If made final, this proposed rule will not result in a Federal mandate that will likely result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995).
        E. National Environmental Policy Act
        NHTSA has analyzed this proposed rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.
        F. Executive Order 12778 (Civil Justice Reform)
        When promulgating a regulation, agencies are required under Executive Order 12988 to make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.
        Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this proposed rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
        G. Paperwork Reduction Act (PRA)
        Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. Several of the conditions placed by this exemption from the make inoperative prohibition are considered to be information collection requirements as defined by the OMB in 5 CFR part 1320. Specifically, this exemption from the make inoperative prohibition for motor vehicle dealers and repair businesses is conditioned upon vehicle owners filling out and submitting a request form to the agency, obtaining an authorization letter from the agency and then presenting the letter to a dealer or repair business. The exemption is also conditioned upon the dealer or repair business filling in information about itself and the installation of the retrofit on-off switch in the form provided for that purpose in the authorization letter and then returning the form to NHTSA. These information collection requirements in Part 595 have been approved by OMB (OMB Number: 2127-0588) through June 30, 2013, pursuant to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq). NHTSA will request an extension of this approval in a timely manner.
        H. National Technology Transfer and Advancement Act
        Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the International Organization for Standardization (ISO) and the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards. There are no voluntary consensus standards developed by voluntary consensus standards bodies pertaining to this NPRM.
        I. Plain Language
        Executive Order 12866 requires 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 isn't 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 write to us with your views.
        J. 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.
        K. Privacy Act

        Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register
          published on April 11, 2000 (65 FR 19477).
        V. Public Participation
        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 the Docket at the address given above under ADDRESSES.

        Comments may also be submitted to the docket electronically by logging into http://www.regulations.gov. Follow the online instructions for submitting comments.

        Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.
        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 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, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets.
        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.

          List of Subjects in 49 CFR Part 595
          Imports, Motor vehicle safety, Motor vehicles.

        In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 595 as follows.

          PART 595—MAKE INOPERATIVE EXEMPTIONS
          1. The authority citation for part 595 continues to read as follows:

             Authority:
            49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166; delegation of authority at 49 CFR 1.50.

          2. Amend § 595.5 by revising paragraph (a) to read as follows:

            § 595.5
            Requirements.
            (a) Beginning January 19, 1998, a dealer or motor vehicle repair business may modify a motor vehicle manufactured before September 1, 2015 by installing an on-off switch that allows an occupant of the vehicle to turn off an air bag in that vehicle, subject to the conditions in paragraphs (b)(1) through (5) of this section.

            Issued on: May 30, 2012.
            Christopher J. Bonanti,
            Associate Administrator for Rulemaking.

      [FR Doc. 2012-13957 Filed 6-7-12; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 680
        RIN 0648-AW37
        Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands King and Tanner Crabs

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of availability of an amendment to a fishery management plan; request for comments.

          SUMMARY:
          NMFS proposes Amendment 24 the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (FMP) to: specify a five-tier system for determining the status of the crab stocks managed under the FMP, establish a process for annually assigning each crab stock to a tier and for setting the overfishing and overfished levels, and reduce the number of crab stocks managed under the FMP. Amendment 24 is necessary to establish new overfishing definitions that contain objective and measurable criteria for determining whether each managed stock is overfished or whether overfishing is occurring and to remove several crab stocks managed by the State of Alaska from FMP management. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMP, and other applicable laws.

          DATES:
          Comments on Amendment 24 must be submitted on or before May 19, 2008.

          ADDRESSES:
          Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-AW37, by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal website at http://www.regulations.gov.
          • Mail: P. O. Box 21668, Juneau, AK 99802.
          • Fax: (907) 586-7557.
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

          All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe portable document file (pdf) formats only.

          Copies of Amendment 24 and the Environmental Assessment (EA) for this action may be obtained from the NMFS Alaska Region at the address above or from the Alaska Region website at http://www.fakr.noaa.gov/sustainablefisheries.htm.

          FOR FURTHER INFORMATION CONTACT:
          Gretchen Harrington, 907-586-7228 or gretchen.harrington@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any Fishery Management Plan (FMP) amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This action constitutes such notice for Amendment 24 to the FMP for the Bering Sea/Aleutian Islands King and Tanner Crabs. NMFS will consider the public comments received during the comment period in determining whether to approve this FMP amendment.
        In December 2007, the North Pacific Fishery Management Council (Council) unanimously recommended Amendment 24 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs. Amendment 24 would satisfy the Magnuson-Stevens Act requirement that FMPs contain objective and measurable criteria for determining whether a stock is overfished, whether overfishing is occurring, and for rebuilding overfished stocks. Section 301(a) of the Magnuson-Stevens Act establishes national standards for fishery conservation and management, and requires that all FMPs create management measures consistent with those standards. National Standard 1 requires that conservation and management measures shall “prevent overfishing while achieving, on a continuing basis, the optimum yield” from fisheries in Federal waters.
        Amendment 24 would (1) specify a five-tier system for determining the status of the crab stocks managed under the FMP, (2) establish a process for annually assigning each crab stock to a tier and for setting the overfishing and overfished levels, and (3) reduce the number of crab stocks managed under the FMP. The stocks status determination criteria in Amendment 24 are necessary to reflect current scientific information and accomplish the following:
        • Provide an FMP framework to annually define values using the best available scientific information.
        • Provide a new tier system that accommodates varying levels of uncertainty of information and takes advantage of alternative biological reference points.
        • Define the status determination criteria and their application to the appropriate component of the population.
        Removal of Stocks
        Amendment 24 would remove twelve state-managed stocks from the FMP for which the State of Alaska (State) has a legitimate interest in the conservation and management. For each of these stocks, the majority of catch in the fisheries occurs in State waters or the State either has closed the directed fishery or manages a limited incidental or exploratory fishery. The State would continue to manage these stocks as they currently do under the deferred management authority of the FMP.
        Five-Tier System
        The stocks status determination criteria for crab stocks would be annually calculated using a five-tier system that accommodates varying levels of uncertainty of information. The five-tier system would incorporate new scientific information and provide a mechanism to continually improve the stock status determination criteria as new information becomes available. The five-tier system would be used to determine the status of the crab stocks and whether (1) overfishing is occurring or the rate or level of fishing mortality for a stock or stock complex is approaching overfishing, and (2) a stock or stock complex is overfished or a stock or stock complex is approaching an overfished condition.
        Overfishing would be determined by comparing the overfishing level, as calculated in the five-tier system for the crab fishing year, with the catch estimates for that crab fishing year.
        An overfished condition would be determined by comparing annual biomass estimates to the established minimum stock size threshold (MSST), defined as one half the biomass estimated to produce maximum sustainable yield to the fishery. For stocks where MSSTs (or proxies) are defined, if the biomass drops below the MSST (or proxy thereof) then the stock would be considered to be overfished. MSST or proxies would be set for stocks in Tiers 1 through 4. For Tier 5 stocks, it would not be possible to set an MSST because there are no reliable estimates of biomass.
        Annually, the overfishing level for each stock would be calculated for the upcoming crab fishing year based on the most recent abundance estimates prior to the State of Alaska setting the total allowable catch or guideline harvest level for that stock's upcoming crab fishing season. First, a stock would be assigned to one of the five tiers based on the availability of information for that stock. Tier assignments would be made through the Council's Crab Plan Team process and recommended by the Council's Scientific and Statistical Committee.
        Once a stock is assigned to a tier, the stock status level would be determined based on biomass estimates from recent survey data and simulation models, as available. The tier system would specify three levels of stock status: “a,” “b,” and “c.” At stock status level “a,” current stock biomass exceeds the biomass estimated to produce maximum sustainable yield to the fishery. At status level “b,” current stock biomass is less than necessary produce maximum sustainable yield to the fishery but greater than a level specified as the critical biomass threshold. At stock status level “c,” current stock biomass is below the critical biomass threshold and directed fishing would be prohibited. The stock status level determines the equation for calculating the fishing rate used to determine the overfishing level. For stocks in Tiers 1 through 4, the fishing rate would be reduced as biomass declines by stock status level.
        Tier 5 stocks have no reliable estimates of biomass or natural mortality and only historical data of retained catch is available. For stocks in Tier 5, the overfishing level would be specified in terms of an average catch value over an historical time period, unless the Scientific and Statistical Committee recommends an alternative value based on the best available scientific information.

        After the crab fishing year, NMFS would determine whether overfishing occurred by comparing the overfishing level with the catch from the previous crab fishing year. For stocks where non-target fishery removal data are available, catch would include all fishery removals, including retained catch and discard losses. Discard losses would be determined by multiplying the appropriate handling mortality rate by observer estimates of bycatch discards. For stocks where only retained catch information is available, the overfishing level would be set for and compared to the retained catch.
        Annually, the Council, Scientific and Statistical Committee, and Crab Plan Team will review (1) the stock assessment documents, (2) the OFLs and total allowable catches or guideline harvest levels for the upcoming crab fishing year, (3) NMFS's determination of whether overfishing occurred in the previous crab fishing year, and (4) NMFS's determination of whether any stocks are overfished.
        The Alaska Fisheries Science Center (AFSC) reviewed the proposed overfishing definitions in Amendment 24 and supporting environmental assessment for compliance with guidelines provided for National Standards 1 and 2 in 50 CFR part 600. During this review, the AFSC recommended modifications to the amendment text to clarify the Council's intent and comply with the Magnuson-Stevens Act. At its February 2008 meeting, the Council adopted the FMP text for Amendment 24 which included the AFSC's recommendations. On February 14, 2008, the AFSC certified that the proposed definitions (1) have sufficient scientific merit, (2) are likely to result in effective Council action to protect a managed stock from closely approaching or reaching an overfished status, (3) provide a basis for objective measurement of the status of a managed stock against the definition, and (4) are operationally feasible.

        An EA was prepared for Amendment 24 that describes the management background, the purpose and need for action, the management alternatives, and the environmental and socio-economic impacts of the alternatives (see ADDRESSES).
        Public comments are being solicited on proposed Amendment 24 through May 19, 2008. All comments received by the end of the comment period on the amendment will be considered in the approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received—not just postmarked or otherwise transmitted—by the close of business on the last day of the comment period.

          Dated: March 13, 2008.
          Emily H. Menashes
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. E8-5562 Filed 3-18-08; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF HOMELAND SECURITY
        Federal Emergency Management Agency
        44 CFR Part 67
        [Docket No. FEMA-D-7606]
        Proposed Flood Elevation Determinations

          AGENCY:
          Federal Emergency Management Agency (FEMA), Emergency Preparedness and Response Directorate, Department of Homeland Security.

          ACTION:
          Proposed rule.

          SUMMARY:
          Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations (BFEs) and proposed BFE modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).

          DATES:
          The comment period is ninety (90) days following the second publication of this proposed rule in a newspaper of local circulation in each community.

          ADDRESSES:
          The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.

          FOR FURTHER INFORMATION CONTACT:
          Doug Bellomo, P.E., Hazard Identification Section, Emergency Preparedness and Response Directorate, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-2903.

        SUPPLEMENTARY INFORMATION:
        FEMA proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
        These proposed base flood and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

          National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

          Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this proposed rule is exempt from the requirements of the Regulatory Flexibility Act because proposed or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to establish and maintain community eligibility in the NFIP. As a result, a regulatory flexibility analysis has not been prepared.

          Regulatory Classification. This proposed rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

          Executive Order 12612, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

          Executive Order 12778, Civil Justice Reform. This proposed rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

          List of Subjects in 44 CFR Part 67
          Administrative practice and procedure, flood insurance, reporting and recordkeeping requirements.

        Accordingly, 44 CFR Part 67 is proposed to be amended as follows:

          PART 67—[AMENDED]
          1. The authority citation for Part 67 continues to read as follows:

            Authority:
            42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

            § 67.4
            [Amended]
            2. The tables published under the authority of § 67.4 are proposed to be amended as follows:

                Source of flooding
                Location
                #Depth in feet above ground.
                  *Elevation in feet (NGVD)
                  •Elevation in feet (NAVD)

                Existing
                Modified
                Communities affected

                  ALABAMA

                  Madison County

                Big Cove Creek
                Approximately 0.4 mile upstream of the confluence with Flint River
                *600
                *599
                Madison County (Unincorporated Areas), City of Huntsville

                Approximately 0.9 mile upstream of Dug Hill Road
                None
                *688

                Big Cove Creek Tributary
                At the confluence with Big Cove Creek
                None
                *656
                Madison County (Unincorporated Areas), City of Huntsville

                Approximately 0.7 mile upstream of the confluence with Big Cove Creek
                None
                *679

                Peevey Creek
                Approximately 1.2 miles upstream of the confluence with Robinson Mill Creek
                *607
                *608
                Madison County (Unincorporated Areas), City of Huntsville

                Approximately 2.2 miles upstream of the confluence with Robinson Mill Creek
                None
                *639

                  City of Huntsville

                Maps available for inspection at the City of Huntsville City Hall, 320 Fountain Circle, 2nd Floor, Huntsville, Alabama.

                Send comments to the Honorable Loretta Spencer, Mayor of the City of Huntsville, 308 Fountain Circle, Huntsville, Alabama 35805.

                  Madison County (Unincorporated Areas)

                Maps available for inspection at the Madison County Engineering Department, 814 Cook Avenue, Huntsville, Alabama.

                Send comments to The Honorable Mike Gillespie, Chairman of Madison County, 100 North Side Square, Huntsville, Alabama 35801.

                  ALABAMA

                  Morgan County

                Bakers Creek
                Approximately 1,600 feet upstream of the confluence with the Tennessee River
                •559
                •558
                Morgan County (Unincorporated Areas), City of Decatur

                Approximately 100 feet downstream of West Morgan Road
                •620
                •621

                Tributary to Bakers Creek
                At the confluence with Bakers Creek
                •598
                •595
                Morgan County (Unincorporated Areas), City of Decatur

                Approximately 150 feet upstream of Cumberland Avenue Southwest
                None
                •611

                Betty Rye Branch
                Approximately 0.8 mile upstream of the confluence with the Tennessee River
                •560
                •559
                Morgan County (Unincorporated Areas), City of Decatur

                Approximately 150 feet upstream of Bedford Drive Southwest
                •609
                •607

                Black Branch
                Just upstream of Point Mallard Drive (8th Street Southeast)
                •566
                •562
                Morgan County (Unincorporated Areas), City of Decatur

                Approximately 0.2 mile upstream of Regency Boulevard
                •567
                •566

                Brush Creek
                Approximately 650 feet downstream of Brookmead Road
                •561
                •562
                City of Decatur

                Approximately 0.2 mile upstream of Royal Drive
                •567
                •568

                Chapel Hill Branch
                Approximately 0.4 mile upstream of the confluence with West Flint Creek
                None
                •572
                Morgan County (Unincorporated Areas), City of Decatur

                Approximately 2.0 miles upstream of the confluence with West Flint Creek
                None
                •594

                Clark Spring Branch
                Approximately 800 feet upstream of the confluence with Brush Creek
                •567
                •568
                City of Decatur

                Approximately 400 feet upstream of Asheville Drive Southwest
                None
                •641

                Clark Spring Branch Tributary
                At the confluence with Clark Spring Branch
                •588
                •587
                City of Decatur

                Approximately 300 feet upstream of Danville Park Drive Southwest
                None
                •613

                Dry Branch
                Approximately 0.5 mile downstream of Washington Street
                •560
                •559
                Morgan County (Unincorporated Areas), City of Decatur

                Approximately 900 feet upstream of Runnymead Avenue Southwest
                •605
                •604

                North Dinsmore
                Just downstream of U.S. Highway 31
                •563
                •564
                City of Decatur

                Approximately 100 feet upstream of Cedar Lake Road
                None
                •575

                South Dinsmore Middle Tributary
                Approximately 50 feet downstream of U.S. Highway 31
                •563
                •564
                Morgan County (Unincorporated Areas), City of Decatur

                Approximately 250 feet upstream of Spring Avenue
                None
                •610

                South Dinsmore North Tributary
                At the confluence with South Dinsmore Middle Tributary
                None
                •567
                City of Decatur

                Approximately 0.5 mile upstream of Lenwood Road
                None
                •570

                South Dinsmore South Tributary
                At the confluence with South Dinsmore Middle Tributary
                None
                •571
                Morgan County (Unincorporated Areas), City of Decatur

                Approximately 1,600 feet upstream of Central Avenue
                None
                •576

                  City of Decatur

                Maps available for inspection at the City of Decatur Building Department, 402 Lee Street Northeast, Fourth floor, Decatur, Alabama.

                Send comments to The Honorable Lynn C. Fowler, Mayor of the City of Decatur, P.O. Box 488, Decatur, Alabama 35602.

                  Morgan County (Unincorporated Areas)

                Maps available for inspection at the Morgan County Engineering Department, 580 Shull Road, Northeast, Hartselle, Alabama.

                Send comments to The Honorable Larry Benrich, Chairman of the Morgan County Commission, P.O. Box 668, Decatur, Alabama 35601.

                  NORTH CAROLINA

                  Currituck County

                Moyock Run
                Approximately 100 feet upstream of South Mills Road (S.R. 1227)
                None
                •10
                Currituck County (Unincorporated Areas)

                Approximately 1.1 miles upstream of South Mills Road (S.R. 1227)
                None
                •11

                Atlantic Ocean
                At the Virginia State Boundary
                •12
                •16
                Currituck County (Unincorporated Areas)

                Approximately 500 feet west of the intersection of Spindrift Trail and Land Fall Court
                None
                •7

                Currituck Sound
                Approximately 0.9 mile east of the intersection of Red Dog Lane and Highway 158
                •7
                •8
                Currituck County (Unincorporated Areas)

                At the northeast corner of the intersection of Brabble Street and Highway 168
                •5
                •4

                  Currituck County (Unincorporated Areas)

                Maps available for inspection at the Currituck County Planning and Inspections Department, 153 Courthouse Road, Currituck, North Carolina.

                Send comments to Mr. Dan Scanlon, Currituck County Manager, 153 Courthouse Road, Currituck, North Carolina 27929-0039.

                  NORTH CAROLINA

                  Johnston County

                East Mingo Creek
                At the confluence with Mingo Swamp
                None
                •220
                Town of Benson, Johnston County (Unincorporated Areas)

                Approximately 0.3 mile downstream of Dennig Road
                 None
                •244

                Mingo Swamp
                At the Johnston/Sampson county line
                None
                •172
                Town of Benson, Johnston County (Unincorporated Areas)

                Approximately 0.7 mile upstream of Red Hill Church Road
                None
                •255

                Mingo Swamp Tributary 2
                At the Johnston Harnett county line
                None
                •205
                Town of Benson, Johnston County (Unincorporated Areas)

                Approximately 400 feet upstream of Hodges Chapel Road
                None
                •244

                  Town of Benson

                Maps available for inspection at the Benson Town Hall, Zoning Department, 303 East Church Street, Benson, North Carolina.

                Send comments to The Honorable Don Johnson, Mayor of the Town of Benson, P.O. Box 69, Benson, North Carolina 27504.

                  Johnston County (Unincorporated Areas)

                Maps available for inspection at the Johnston County Public Utilities Office, 309 East Market Street, Smithfield, North Carolina.

                Send comments to Mr. Rick Hester, Johnston County Manager, P.O. Box 1049, Smithfield, North Carolina 27577.

                  NORTH CAROLINA

                  Wayne County

                Buck Marsh Branch
                Approximately 0.2 mile downstream of Zion Church Road
                None
                •94
                Wayne County (Unincorporated Areas)

                Approximately 0.3 mile upstream of James Price Road
                None
                •119

                Cabin Branch
                Approximately 0.9 mile downstream of NC 111 South
                None
                •97
                Wayne County (Unincorporated Areas)

                Approximately 0.9 mile upstream of Cornerstone Drive
                None
                •135

                Horsepen Branch
                At confluence with Lewis Branch
                None
                •120
                Wayne County (Unincorporated Areas)

                Approximately 450 feet upstream of Emmaus Church Road
                None
                •155

                Jones Branch
                Approximately 0.4 mile downstream of Mark Herring Road
                None
                •101
                Wayne County (Unincorporated Areas)

                Approximately 1.0 mile upstream of Mark Herring Road
                None
                •133

                Jumping Run Branch
                Approximately 0.3 mile downstream of NC Highway 55
                None
                •110
                Wayne County (Unincorporated Areas)

                Approximately 0.8 mile upstream of NC Highway 55
                None
                •127

                Lewis Branch
                Just upstream of NC Highway 55
                None
                •106
                Wayne County (Unincorporated Areas)

                Approximately 1.4 miles upstream of the confluence of Horsepen Branch
                None
                •137

                  Unincorporated Areas of Wayne County

                Maps available for inspection at the Wayne County Planning Department, 224 East Walnut Street, Goldsboro, North Carolina.

                Send comments to Mr. Lee Smith, Wayne County Manager, P.O. Box 227, Goldsboro, North Carolina 27533-0227.

                  NORTH CAROLINA

                  Town of Smithfield, Johnston County

                Spring Branch
                At the upstream side of East Second Street
                •129
                •128
                Town of Smithfield

                Approximately 265 feet upstream of Collier Street
                •143
                •144

                  Town of Smithfield

                Maps available for inspection at the Smithfield Town Hall, 350 East Market Street, Smithfield, North Carolina.

                Send comments to The Honorable Bill Jordan, Mayor of the Town of Smithfield, P.O. Box 761, Smithfield, North Carolina 27577.

                  PENNSYLVANIA

                  Township of Manheim, Lancaster County

                Landis Run
                Approximately 1,000 feet downstream of New Holland Pike
                •278
                •279
                Township of Manheim

                Approximately 150 feet downstream of Butter Road
                •305
                •306

                Maps available for inspection at the Manheim Township Office, 1840 Municipal Drive, Lancaster, Pennsylvania.

                Send comments to Mr. James Martin, Manager of the Township of Manheim, 1840 Municipal Drive, Lancaster, Pennsylvania 17601-4162.

            (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”)
            Dated: October 18, 2004.
            David I. Maurstad,
            Acting Director, Mitigation Division, Emergency Preparedness and Response Directorate.

      [FR Doc. 04-23702 Filed 10-21-04; 8:45 am]
      BILLING CODE 9110-12-P