        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 49
        [EPA-R01-OAR-2020-0374; FRL-10014-00-Region 1]
        Approval and Promulgation of Air Quality Implementation Plan; Mashantucket Pequot Tribal Nation

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA) proposes to approve the Mashantucket Pequot Tribal Nation's (MPTN or the Tribe) Tribal Implementation Plan (TIP) under the Clean Air Act (CAA) to regulate air pollution within the exterior boundaries of the Tribe's reservation. The proposed TIP is one of two CAA regulatory programs that comprise the Tribe's Clean Air Program (CAP). EPA approved the Tribe for treatment in the same manner as a State (Treatment as State or TAS) for purposes of administering New Source Review (NSR) and Title V operating permits under the CAA on July 10, 2008. In this action we propose to act only on those portions of MPTN's CAP that constitute a TIP containing severable elements of an implementation plan under CAA section 110(a). The proposed TIP includes permitting requirements for major and minor sources of air pollution. The purpose of the proposed TIP is to enable the Tribe to attain and maintain the National Ambient Air Quality Standards (NAAQS) within the exterior boundaries of its reservation by establishing a federally enforceable preconstruction permitting program.

          DATES:
          Written comments must be received on or before October 9, 2020.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-R01-OAR-2020-0374 at https://www.regulations.gov, or via email to Bird.Patrick@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, 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 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, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly available docket materials are available at https://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA Region 1 Regional Office, Air and Radiation Division, 5 Post Office Square—Suite 100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays and facility closures due to COVID-19.

          FOR FURTHER INFORMATION CONTACT:

          Patrick Bird, Air Permits, Toxics and Indoor Programs Branch, U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Mail Code: 05-2, Boston, MA 02109-0287. Telephone: 617-918-1287. Fax: 617-918-0287. Email: Bird.Patrick@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
        Table of Contents

          I. Background
          II. CAA Requirements and the Role of Indian Tribes
          III. Evaluation of the MPTN's Implementation Authorities
          IV. Evaluation of the MPTN's Tribal Implementation Plan
          V. Proposed Action
          VI. Incorporation by Reference
          VII. Statutory and Executive Order Reviews

        I. Background
        EPA is proposing to approve a TIP submitted by the MPTN for approval under section 110 of the CAA. The proposed TIP addresses attainment and maintenance of the National Ambient Air Quality Standards (NAAQS) by establishing a federally enforceable preconstruction permitting program within the exterior boundaries of the Tribe's reservation. It also allows for sources that otherwise would have the potential to emit hazardous air pollutants or regulated NSR pollutants in amounts at or above those for major sources to request federally enforceable permit limitations that restrict emissions to below those of a major source.
        The MPTN is an Indian Tribe federally recognized in 1983 by Congressional legislation (Pub. L. 98-134,  9, Oct. 1St, 1983 97 Stat 855, Title 25 U.S.C.A. § 1751-1760). The Secretary of the Interior recognizes the “Mashantucket Pequot Tribe of Connecticut” (73 FR 18553, 18554, April 4, 2008). MPTN's CAP was established by Tribal Council Resolution in 2005 (TCR102600-01 of 02). Beginning in 2005, the MPTN, with assistance from EPA, began developing a draft permitting program with the goal of submitting it to EPA for approval under the CAA. On May 4, 2005, the MPTN submitted a request that we find the Tribe eligible for TAS pursuant to § 301(d) of the CAA and Title 40, part 49 of the Code of Federal Regulations (CFR), for the purpose of implementing its CAA permitting program.
        Specifically, the MPTN requested a TAS eligibility determination for purposes of implementing two CAA programs that together comprise the CAP: (1) A Tribal Implementation Plan (TIP) that includes source-specific rules 1
           and major and minor source permit programs under CAA section 110; and (2) an operating permit program under title V of the Act. In addition, the Tribe requested TAS for receiving notifications under title V of the CAA and submitting recommendations to EPA on air quality designations under CAA section 107(d). On July 10, 2008, EPA determined that the Tribe is eligible for TAS for these purposes.

            1 The Tribe's actual TIP submittal did not include source-specific rules, so that is not part of our action.

        The MPTN formally submitted the applicable elements of its TIP to EPA Region 1 on December 7, 2018. Having found that the MPTN is eligible for TAS to implement these regulatory programs, EPA is now proposing to approve the Tribe's TIP. We intend to act on the Tribe's title V operating permit program in separate notice and comment processes, as appropriate.
        Approval and implementation of the MPTN TIP will be an important step in ensuring that basic air quality protection is in place to protect public health and welfare in the MPTN reservation, consistent with the CAA's overarching goals of protecting air resources throughout the nation, including air resources in Indian Country.
        II. CAA Requirements and the Role of Indian Tribes
        A. How did the 1990 CAA Amendments include Indian Tribes?

        Under the 1990 amendments to the CAA, the EPA may approve eligible Tribes to administer certain provisions of the CAA. Pursuant to Section 301(d)(2) of the CAA, EPA promulgated the Tribal Authority Rule (TAR) on February 12, 1998 (63 FR 7254). The TAR specifies the CAA provisions for which it is appropriate to treat Tribes in the same manner as states, the eligibility criteria the Tribes must meet if they choose to seek such treatment, and the procedure by which EPA reviews a Tribe's request for an eligibility determination.

        As a general matter, EPA determined in the TAR that it is not appropriate to treat Tribes in the same manner as states for purposes of specific plan submittal and implementation deadlines for NAAQS-related requirements. See 40 CFR 49.4. Thus, Tribes are generally not subject to CAA provisions which specify a deadline by which something must be accomplished. So, for example, provisions mandating the submission of state implementation plans do not apply to the Tribes. Furthermore, under the TAR (40 CFR 49.7(c)), a Tribe may choose to implement reasonably severable portions of the various CAA programs, as long as it can demonstrate that its proposed air program is not integrally related to program elements that are not included in the plan submittal and is consistent with applicable statutory and regulatory requirements. This modular approach is intended to give Tribes the flexibility to address their most pressing air resource issues and acknowledges that Tribes often have limited resources with which to address their environmental concerns. Consistent with the exceptions listed in 40 CFR 49.4, once submitted, a Tribe's proposed air program will be evaluated in accordance with applicable statutory and regulatory criteria in a manner similar to the way EPA would review a state submittal. See 40 CFR 49.9(h). EPA expects Tribes to fully implement and enforce their approved programs and, as with states, EPA retains its discretionary authority to impose sanctions for failure to implement an air program.

        Where the provisions of the act or implementing regulations governing the program for which the Tribe seeks approval require criminal enforcement authority, the Tribe may enter into a memorandum of agreement with the appropriate EPA Region to provide for criminal enforcement by EPA. See 40 CFR 49.7(a)(6) and 49.8.
        B. What criteria must a Tribe demonstrate to be treated in the same manner as a state under the CAA?
        Under Section 301(d) of the Clean Air Act, 42 U.S.C. 7601, and the TAR (at 40 CFR 49.6), EPA may treat a Tribe in the same manner as a state for purposes of administering certain CAA programs or grants if the Tribe demonstrates that (1) it is federally recognized; (2) it has a governing body carrying out substantial governmental duties and powers; (3) the functions to be exercised by the Tribe pertain to the management and protection of air resources within the Tribe's reservation or within non-reservation areas under the Tribe's jurisdiction; and (4) it can reasonably be expected to be capable of carrying out the functions for which it seeks approval.
        C. What is an implementation plan for criteria air pollutants, and what must it contain?
        Implementation plans are a set of programs and regulations submitted by states and, if they so choose, by Tribes, that outline a definite plan by which the state or Tribe intends to help attain or maintain NAAQS. NAAQS have been established for the following six pollutants: Ozone; carbon monoxide; particulate matter; sulfur dioxide; lead; and nitrogen dioxide. The EPA calls these pollutants “criteria pollutants” because the original standards were based on information in air quality criteria documents developed for pollutants that “endanger the public health or welfare.” Once approved by EPA, implementation plans become enforceable as a matter of federal law.
        Implementation plans are governed by Section 110 of the CAA, 42 U.S.C. 7410. Under Sections 110(o) and 301(d) of the CAA and the TAR (40 CFR 49.9(h)), any TIP submitted to EPA shall be reviewed in accordance with the provisions for review of state implementation plans (SIPs) set forth in CAA Section 110. Thus, the TIP must include not only the substantive rules by which the Tribe proposes to help achieve NAAQS, but must also provide assurances that the Tribe will have adequate personnel, funding, and authority to administer the plan, as required by CAA Section 110(a)(2)(E), and requirements governing conflicts of interest, as required by CAA Section 128. Under Section 128, implementation plans must contain requirements that (1) any “board or body” that approves permits or enforcement orders have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to the permits or orders and (2) conflicts of interest are disclosed. EPA does not intend to read Section 128 to limit a Tribe's flexibility in creating a regulatory infrastructure that ensures an adequate separation between the regulator and the regulated entity (59 FR 43956, 43964 (Aug. 25, 1994)).
        EPA will evaluate the elements submitted in each TIP on a case-by-case basis to ensure the selected program is reasonably severable under the CAA, and that the TIP has control measures that adequately address the specific types of pollution of concern on the reservation. Once EPA approves the TIP, its provisions are enforceable by the Tribe, by EPA, and by citizens. As with SIPs, EPA maintains an ongoing oversight role to ensure the approved TIP is adequately implemented and enforced and to provide technical and policy assistance. An important aspect of EPA's oversight role is that EPA retains legal authority to bring an enforcement action against a source violating the approved TIP.
        III. Evaluation of the MPTN's Implementation Authorities
        A. How did the MPTN demonstrate eligibility to be treated in the same manner as a State under the CAA?
        By letter dated May 4, 2005 and submitted to EPA, the MPTN requested an EPA determination that the Tribe is eligible for TAS for the purposes of implementing two CAA programs: (1) A TIP that includes source-specific 2
           rules and major and minor source permit programs under CAA section 110; and (2) an operating permit program under title V of the Act. In addition, the Tribe requested TAS for receiving notifications under title V of the CAA and for submitting recommendations to EPA on air quality designations under CAA section 107(d). EPA notified appropriate governmental entities and the public of the Tribe's application and addressed all comments received as part of that process.

            2 As noted earlier, the Tribe's actual TIP submittal did not include source-specific rules.

        On July 10, 2008, based on the information submitted by the Tribe, and after consideration of all comments received in response to notice of the Tribe's request, EPA determined that the MPTN met the eligibility requirements of CAA section 301(d) and 40 CFR 49.6 for these purposes under the CAA. This determination nullified TCR011195-01 of 03 authorizing interim measures until the Tribe could establish TAS. TCR102500-01 of 02 enacted the MPTN's Clean Air Act creating a Tribal Air Quality Program to administer the CAA, and TCR 102600-02 of 02 approved a TIP that addressed a single pollutant of concern, nitrogen oxides (NOX). TCR091605-01 repealed TCR102600-02 of 02 and approved a TIP to address all criteria pollutants through a minor source preconstruction permitting program. TCR060806-06 of 14 adopted a “Global Policy for Air Permitting” that specified the use of best available control technology (BACT) for sources of air pollution. TCR100809-02 of 02 approved EPA grant funding for the purpose of further developing the TIP to include both minor and major sources of air pollution.
        The EPA drafted a decision document entitled “Mashantucket Pequot Tribal Nation of Connecticut: Eligibility Determination under 40 CFR part 49 for Clean Air Act Minor and Major New Source Review and Title V Operating Permit Programs” (TAS Decision Document, included in the docket of this rulemaking), which was dated June 30, 2008, and signed by Robert W. Varney, Regional Administrator, EPA Region 1 on July 10, 2008. The EPA determined that the MPTN had demonstrated: (1) That it is an Indian Tribe recognized in 1983 by Congressional legislation (Pub. L. 98-134,  9, Oct. 1st, 1983 97 Stat 855, Title 25 U.S.C.A. § 1751-1760) and by the Secretary of the Interior (73 FR 18553, 18554 (Apr. 4, 2008)); (2) that it has a governing body carrying out substantial governmental duties and functions; (3) that the functions to be exercised by the Tribe pertain to the management and protection of air resources within the exterior boundaries of the Tribe's reservation; and (4) that the Tribe is reasonably expected to be capable of carrying out the functions to be exercised in a manner consistent with the terms and purposes of the CAA and all applicable regulations.
        B. How would the MPTN administer and enforce the TIP?
        The proposed TIP would be implemented primarily by the MPTN Air Quality Program (AQP) staff and the Tribe's legal counsel. According to the MPTN TIP submittal, AQP staff has received extensive training in TIP development, permit writing and regulatory enforcement and has also demonstrated considerable capabilities in the programmatic, administrative, and legal functions of implementing an air quality program. The MPTN is currently one of only two Tribal Governments that EPA Region 1 has recognized as capable of issuing permits with enforceable limitations on a source's potential to emit.
        As discussed above in section III.A, EPA evaluated the Tribe's implementation and enforcement capabilities as part of our determination that the MPTN is eligible for TAS to implement this TIP and other CAA programs. As part of that determination, EPA found that the MPTN is reasonably expected to be capable of implementing and enforcing the TIP and other CAA programs in a manner consistent with the terms and purposes of the CAA and all applicable regulations.
        The MTPN staff is responsible for inspecting facilities within the exterior boundary of the reservation and responding to any complaints received. AQP staff, and if needed, the MPTN tribal law enforcement authorities, will assume enforcement activities for the purposes of compliance with air regulations. Other MPTN agencies will also provide compliance and enforcement assistance, as appropriate, in accordance with applicable Tribal and Federal law.
        The MPTN's AQP oversees the enforcement of the TIP and establishes requirements and procedures for civil and criminal enforcement. The MPTN AQP has the authority to issue administrative compliance orders, assess civil penalties, and take other enforcement actions against persons who violate requirements of the TIP or other requirements of the CAA within the exterior boundaries of the reservation. A violation by the owner or operator of any emission limitation, emission standard or any other condition contained in a permit shall subject the owner or operator to any or all enforcement penalties, including permit revocation, available under the CAA. No subsequent permit will be issued until violations have been resolved to the satisfaction of the AQP.
        Furthermore, EPA Region 1 and the MPTN have a memorandum of agreement between the two agencies outlining general terms for the cooperation of criminal enforcement matters as provided by section 113(c) of the CAA, 42 U.S. C. 7413(c). The agreement, entitled “Memorandum of Agreement Between the Mashantucket Pequot Tribe of Connecticut and the U.S. Environmental Protection Agency Region I (a copy of which is provided in the docket of this action) provides procedures of communication as they relate to investigative leads of potential criminal enforcement matters concerning non-Native Americans and Native Americans.
        IV. Evaluation of the MPTN's Tribal Implementation Plan
        The MPTN TIP establishes a preconstruction permitting program for new and modified stationary sources within the Tribe's jurisdiction by: (1) Providing a mechanism to issue preconstruction air permits to major and minor sources of criteria air pollutants; (2) providing a mechanism for an otherwise major source to voluntarily accept emission limitations to restrict its potential to emit (PTE) and become a synthetic minor source; (3) providing the option for major stationary sources, seeking to minimize permitting complexities associated with major new source review, to establish a plantwide applicability limitation (PAL) within an actual emissions PAL permit; and (4) setting forth the criteria and procedures that the AQP will use to administer the program. Requirements of this TIP are applicable to any person who owns, operates, seeks to construct or plans to modify a stationary source of air pollutants located within the exterior boundaries of MPTN.
        A. Does the MPTN TIP meet all CAA requirements?
        The MPTN's CAP is comprised of two regulatory programs: (1) A Tribal implementation plan (TIP) for the implementation, maintenance, and enforcement of the NAAQS under CAA 110; and (2) a Tribal operating permits program under title V of the Act. As stated earlier, in this action we propose to act only on the TIP.

        Pursuant to section 110 of the Clean Air Act (42 U.S.C. Section 7410), the TIP portion of the program addresses attainment and maintenance of the NAAQS by establishing a federally enforceable preconstruction permitting program for major and minor source of air pollution. Consistent with authorities approved by EPA in the MPTN TAS for CAA section 110 permitting programs and EPA's Federal Minor New Source Review Program in Indian Country (See 40 CFR 49.151), it also allows for sources that otherwise would have the potential to emit hazardous air pollutants in amounts at or above those for major sources (40 CFR 63.2) to request federal enforceable permit limitations that restrict emissions to below those of a major source. Subtitle 12.2 of the Tribe's regulations contains those elements specific to the TIP. This Subtitle, with definitions contained in Subtitle 12.1, Section 4, meets the minimum program requirements for implementation plans for review of new sources and modifications specified at 40 CFR 51.160 through 51.166.
        1. EPA's Evaluation of the MPTN Minor NSR Program

        The purpose of the MPTN's minor new source review permitting requirements is to establish a preconstruction permitting program, for new minor sources and minor modifications at stationary sources. The requirements that minor source programs must meet to be approved are outlined in 40 CFR 51.160 through 51.164. These regulations require states to develop “legally enforceable procedures” to enable a state “to determine whether the construction or modification of a [source] will result in (1) a violation of applicable portions of the control strategy; or (2) interference with attainment or maintenance of a national standard.” See 40 CFR 51.160(a). The program must identify the types and sizes of sources subject to review, and the state's plan must discuss the basis for determining which facilities will be subject to review. See 40 CFR 51.160(e).

        Although the Act does not require Tribes to develop and seek EPA approval of NSR permit programs, where a Tribe decides to do so, EPA evaluates the program in accordance with applicable statutory and regulatory criteria in a manner similar to the way in which EPA would review a similar state submittal. See 40 CFR 49.9(h); 59 FR 43956 at 43965 (Aug. 25, 1994) (proposed TAR preamble); 63 FR 7254 (Feb. 12, 1998) (final TAR preamble).
        For the reasons discussed below, we propose to approve the MPTN minor NSR program in accordance with the TAR and the criteria for approval of minor NSR programs at 40 CFR 51.160 through 51.164. It is important to note, however, that we are proposing to approve this program as a base program suitable to the MPTN's reservation.
        Section 110(a)(2)(C) of the Act (42 U.S.C. Section 7410(a)(2)(C)) requires that each implementation plan include a program to regulate the construction and modification of stationary sources, including a permit program as required by parts C and D of title I of the Act, as necessary to assure that the NAAQS are achieved. In this application, MPTN is establishing a preconstruction permitting program for new minor sources and minor modifications at stationary sources. In addition, MPTN is establishing a mechanism for an otherwise major source to voluntarily accept restrictions on its potential to emit to become a synthetic minor source. This mechanism may also be used by an otherwise major hazardous air pollutant (HAP) source to voluntarily accept restrictions on its potential to emit to become a synthetic minor HAP source. Parts C and D, which pertain to prevention of significant deterioration (PSD) and nonattainment, respectively, address the major NSR programs for major stationary sources, and the permitting program for “nonmajor” (or “minor”) stationary sources is addressed by section 110(a)(2)(C) of the Act. We commonly refer to the latter program as the “minor NSR” program. A minor stationary source is a source whose “potential to emit” is lower than the major source applicability threshold for a particular pollutant as defined in the applicable major NSR program.
        (a) Applicability: Owners and operators of stationary sources must apply for and be granted a permit prior to the beginning of actual construction. This applies to new minor NSR sources, existing sources seeking to undertake a minor modification, and any existing source proposing a physical or operational change at a permitted source that would increase allowable emissions of a regulated NSR pollutant above its existing annual allowable emissions limit.
        (b) Minor NSR Source Permits: No person shall begin actual construction of any new minor NSR source without first obtaining a permit to construct. Applications for permits must include facility information, a listing of each emissions unit, detailed unit specific information for all affected emissions units, a description and characterization of the total facility emissions, and if required by the AQP an air quality impact analysis in accordance with 40 CFR part 51, Appendix W.
        (c) General Permits: A general permit must include the following elements: (1) Identification of the specific category of emissions units or sources to which the general permit applies, (2) information required by applicants requesting coverage under a general permit, (3) the effective date(s) of the general permit and rules concerning renewing coverage under the general permit, (4) monitoring, reporting and recordkeeping as applicable, (5) additional permit provisions as applicable, and (6) the fee required for processing the request for general permit coverage.
        (d) Synthetic Minor Source Permits: This provision is applicable to any owner or operator of a stationary source requesting a synthetic minor source permit to establish emissions limitations that limit the source's potential to emit to below major source thresholds. A source that is issued a permit and becomes a synthetic minor source under this section but remains a major source for title V purposes continues to be subject to the applicable title V program provisions. In addition, a synthetic minor source is subject to all applicable tribal rules, regulations, emissions standards and other requirements.
        As noted earlier, although the Act does not require Tribes to develop and seek EPA approval of NSR permit programs, where a Tribe decides to do so, EPA evaluates the program in accordance with applicable statutory and regulatory criteria in a manner similar to the way EPA would review a similar state submittal. 40 CFR 49.9(h); 59 FR 43956 at 43965 (Aug. 25, 1994) (proposed TAR preamble); 63 FR 7254 (Feb. 12, 1998) (final TAR preamble). For the reasons discussed below, we propose to approve the MPTN's minor NSR program in accordance with the TAR and the criteria for approval of minor NSR programs at 40 CFR 51.160 through 51.164. It is important to note, however, that we are proposing to approve this as a base program suitable to the MPTN's reservation. Other Tribal NSR programs may differ significantly and should each be evaluated on a case-by-case basis in light of air quality needs in the relevant area.
        The MPTN's minor new source review permitting requirements apply to stationary sources that are not major NSR sources and have the potential to emit the following Regulated NSR pollutants at or above the following annual ton per year thresholds:

        (a) Nitrogen oxides (NOX), 10
        (b) Volatile Organic Compounds, 5
        (c) Carbon monoxide (CO), 10
        (d) Sulfur dioxide (SO2), 10
        (e) Particulate Matter, 10
        (f) PM10, 5
        (g) PM2.5, 3
        (h) Lead, 0.1
        (i) Fluorides, 1
        (j) Sulfuric acid mist, 2
        (k) Hydrogen sulfide (H2S), 2
        (l) Reduced sulfur compounds (incl. H2S), 2
        (m) Municipal waste combustor emissions, 2
        (n) Municipal solid waste landfill emissions, 10 (as nonmethane organic compounds)
        (o) Any other limit that may become applicable in the event that an attainment designation for Mashantucket is changed by the Administrator.
        We note that the MPTN's minor NSR thresholds for NOX and VOC are slightly higher than the thresholds in Part 49, i.e., 10 tpy as opposed to 5 tpy for NOX and 5 tpy as opposed to 2 tpy for VOC. EPA is proposing to approve these differences as they are consistent with EPA's intent to allow Tribes to fashion programs based on their particular circumstances. In EPA's preamble to 40 CFR part 49, EPA stated the following about Tribes' minor NSR programs and the requirements of 40 CFR part 49.

        [W]e seek to establish a flexible preconstruction permitting program for minor sources in Indian country that is comparable to similar programs in neighboring states in order to create a more level regulatory playing field for owners and operators within and outside of Indian country. See 76 FR 38748 at 38754 (July 1, 2011). This final rulemaking is not intended to establish a new set of minimum criteria that a Tribe or a state would need to follow in developing its own minor source permitting program. Rather, these rules simply represent how we will implement the program in Indian country in the absence of an EPA-approved Tribal implementation plan. However, if a Tribe is developing its own program, this can serve as one example of a program that meets the objectives and requirements of the Act. 76 FR 38748 at 38754 (July 1, 2011).
        This final minor source permitting program addresses, on a national level, many environmental and regulatory issues that are specific to Indian country. We understand that different Tribes may face different issues and may therefore, like states developing SIPs, choose to develop TIPs tailored to their individual Tribal circumstances and needs. This rule will allow Tribes to develop their own TIPs, consistent with the overarching requirement that the Tribe ensure that the TIP will not interfere with any applicable requirement of the CAA. 76 FR 38748 at 38754 (July 1, 2011).
        Finally, we note that the State of Connecticut's SIP-approved minor new source review threshold is 15 tons per year for covered pollutants.
        The MPTN's minor NSR permit program requires each applicant for a minor new source review permit to submit, among other things, a certified application containing information about the facility, the industrial process, the nature and amount of emissions, and any information needed to determine applicable technology-based emission limitations.
        The permit program establishes administrative procedures for action on permit applications, including public notice and a comment period of at least 30 days. The program also provides for an opportunity for public hearings on such permit applications. The issuance or denial of a permit may be appealed administratively and, thereafter, judicially to the Tribal Court.
        We propose to approve these procedures as legally enforceable procedures that establish a base program suitable to the MPTN's reservation and that satisfy the minimum requirements of CAA section 110(a)(2)(C) and 40 CFR 51.160 through 51.164. Note that we are not approving into the TIP the administrative appeal and judicial review procedures in Tribal Court, although they nonetheless remain a valid and important part of the MPTN's permitting program.
        2. EPA's Evaluation of the MPTN Major NSR Programs
        a. Nonattainment New Source Review: MPTN proposes to implement the nonattainment major new source review program as set forth in sections 171 through 193 of the CAA (42 U.S.C. Sections 7501-7515). It requires that major NSR sources subject to this program comply with the provisions and requirement of 40 CR Part 51 (Appendix S) and the requirements of Section 173(c)(1) of the CAA (42 U.S.C. Section 7503(c)(1)), which requires the application of lowest achievable emissions reductions and emissions offsets for new major sources and major modifications for pollutants (and precursors of those pollutants) designated as nonattainment in the geographic area the facility is located in. At present, MPTN is designated as serious nonattainment for the 2008 ozone NAAQS and marginal nonattainment for the 2015 ozone NAAQS.
        The AQP will use the criteria and procedures stipulated within Appendix S to issue, administer and enforce permits subject to the TIP. It should be noted that some important provisions of Appendix S are paraphrased in various paragraphs of the application; however, the full provisions of Appendix S, as may be amended from time to time, are incorporated by reference into the Tribe's regulations. For the purposes of the Tribe's application, the term State Implementation Plan (SIP) as used in Appendix S means Tribal Implementation Plan (TIP) and the term “State” shall mean the Tribe (MPTN), Tribal or, as applicable, Mashantucket. In addition, the requirements of Sec. 173(c)(1) of the CAA are also incorporated by reference into the Tribe's regulations. The provisions (Chapter 3, Sec. 2. Applicability) apply to major NSR sources and major modifications if, for the applicable regulated NSR pollutant evaluated, Mashantucket is currently designated as a nonattainment area under 40 CFR Sec.81.307. Under NSR, the MPTN AQP will issue, administer and enforce permits subject to the TIP by following the provisions stipulated within 40 CFR part 51, Appendix S. In accordance with section 173(a)(4) of the Act (42 U.S.C. Section 7503(a)(4), the AQP shall not issue a permit or permits to a stationary source to which the requirements of the part apply if the reviewing authority has determined that the applicable implementation plan is not being adequately implemented for the nonattainment area in which the proposed source is to be constructed or modified. In accordance with section 173(a)(3) of the CAA and 40 CFR 51 Appendix S, the TIP requires that a permit applicant certify that all existing major sources owned or operated by the applicant (or any entity controlling, controlled by, or under common control with the applicant) in Mashantucket are in compliance with all applicable emission limitations and standards under the Act (or are in compliance with an expeditious schedule which is Federally enforceable or contained in a court decree).
        b. Prevention of Significant Deterioration: MPTN proposes in the TIP to implement the prevention of significant deterioration (PSD) program as set forth in Sections 160 through 169B of the Act (42 U.S.C. Sections 7470-7492). This requires that major NSR sources subject to this program comply with the provisions and requirement of 40 CFR 52.21. While some of the important provisions of 40 CFR 52.21 are paraphrased in various paragraphs in the Tribe's application, the provisions of 40 CFR 52.21 are incorporated into the Tribe's regulations by reference, as the federal regulations may be amended from time to time. The following paragraphs of 40 CFR 52.21 do not apply for the purposes of the Tribe's program: Paragraph (a)(1); Paragraph (g); Paragraph (s), Paragraph (t); and Paragraph (u). In addition, the AQP will use the criteria and procedures stipulated within 40 CFR 52.21 to issue, administer and enforce permits subject to the TIP. Pursuant to 40 CFR 52.21(g)(1), MPTN shall be considered a Class II area. An application for PSD permits shall contain all the following information: (1) Control technology evaluation in accordance with 40 CFR 52.21(j), (2) a source impact analysis in accordance with 40 CFR 52.21(k)(1), (3) an air quality analysis in accordance with 40 CFR 52.21(m), (4) source information required in accordance with 40 CFR 52.21 (n), (5) additional impact analyses required pursuant to 40 CFR 52.21 (o), and (6) a demonstration showing that all stationary sources with MPTN exterior boundaries are subject to emissions limitations and are in compliance, or on schedule for compliance which is federally enforceable or contained in a court decree, with all applicable emission limitations and standards under the CAA.

        The major source permit program establishes administrative procedures for action on permit applications, including public notice and a comment period of at least 30 days. The program also provides for an opportunity for public hearings on such permit applications. The issuance or denial of a permit may be appealed administratively and, thereafter, judicially to the Tribal Court. Note that we are not approving into the TIP the administrative appeal and judicial review procedures in Tribal Court, although they nonetheless remain a valid and important part of the MPTN's permitting program.
        3. EPA's Evaluation of the Tribe's Public Participation Requirements
        The MPTN's TIP meets the CAA's requirements for public participation in the permitting process. The AQP regulations provide for an opportunity for public comment prior to permit issuance on all draft permits and the associated public record, except for sources seeking coverage under a general permit and for administrative permit revisions. However, the AQP in its discretion may determine that public participation is warranted for these actions also.
        The MTPN's public participation requirements include at a minimum the following: Availability, in the area affected by the air pollution source, of the draft permit and associated public record, for public inspection; public notice, describing the availability of the documents for review and the opportunity to comment; a comment period, no less than thirty (30) days commencing upon the date of notice publication; a thirty (30) day period for EPA to review commencing upon the date a copy of the required notice is provided to the Administrator through the appropriate Regional Office; and if requested by a member of the public or if the AQP determines that comments received were significant and warrant such, a public hearing for tentative approval of the permit shall be held with appropriate notice provided.

        The MTPN TIP allows for under limited circumstances administrative permit revisions for minor and major sources of air pollution. Administrative permit revisions are not subject to the permit application, issuance, public participation, or administrative and judicial review requirements. Circumstances that would allow for administrative permit revisions include: (1) The correction of typographical errors; (2) changes in the name, address or phone number of any person identified in the permit or similar minor administrative change at the source; (3) changes in ownership or operational control of a source; (4) requirements related to more frequent monitoring or reporting by the permittee; (5) increases in an emissions unit's annual allowable emissions limit for a regulated NSR pollutant, when the action that necessitates such increase is not otherwise subject to minor or major source permitting requirements; (6) the establishment of an emission limitation for a replacement unit when the construction of which does not trigger the need for a new permit; or (7) any other type of change that the AQP has determined to be similar to the circumstances references above. We note that similar provisions related to administrative permit revisions at minor and major sources of air pollution exist within the EPA's Federal Minor New Source Review Program in Indian Country. See 40 CFR 49.159(f) and 49.153(a)(2)
        B. What procedural requirements did the MPTN satisfy?
        Section 110(a) of the CAA requires that implementation plans be adopted by a state after reasonable notice and public hearing. EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart F. These requirements include publication of notices, by prominent advertisement in the relevant geographic area, of a public hearing on the proposed revisions, a public comment period of at least 30 days, and an opportunity for a public hearing. The MPTN developed its CAA programs in consultation with EPA Region 1 starting in 2005. Following an extensive public comment process, the MPTN Tribal Council codified the CAP under Tribal Law. The program includes both the TIP, which only applies to permitting programs under Section 110 of the CAA, 42 U.S.C Section 7410, and other “tribal only rules” that are not intended to be federally enforceable, and the program was made available for a 30-day public comment period that included the opportunity for the public to request a hearing. No public hearing was requested, and all comments received have been addressed, provided to EPA and posted as part of the public record. The program was then adopted to provide for sound regulation and control of sources of air pollution in Mashantucket to ensure the health, safety and general welfare of all Tribe's members, residents, employees, and guests. The administration of the Tribe's program furthers the Tribe's sovereignty and self-government. We find that the MPTN's process for adopting and submitting the TIP satisfied the procedural requirements for adoption and submission of implementation plans under CAA section 110(a) and EPA's implementing regulations.
        Specifically, MPTN's TIP submittal has fulfilled the following requirements: (1) a formal letter of submittal from the Tribe's Chairman requesting EPA approval of the plan in a letter dated Dec. 7, 2018 from Rodney A. Butler, MPTN, Council Chairman, to Alexandra D. Dunn, Region Administrator, EPA New England Region 1 (Cover Letter), (2) evidence that the Tribe has adopted the plan in the Tribal code or body of regulations to include the date of adoption or final issuance as well as the effective date of the plan (TCR101118-05 of 05) in Attachment 1, (3) evidence that the Tribe has the necessary legal authority under tribal law to adopt and implement the plan, (4) a copy of the actual regulation, or document submitted for approval and incorporation by reference into the plan (Attachment 3), (5) evidence that the Tribe followed all the procedural requirements of the Tribe's laws and constitution in conducting and completing the adoption/issuance of the plan (Article II and IV MPTN constitution), (6) evidence that the public notice was given of the proposed change consistent with procedures approved by EPA, including the date of publication of such notice (Attachment 4, Exhibits A, B, C, D and E), (7) certification that public hearings were held in accordance with information provided in the public notice and the Tribe's laws and constitution (Attachment 4, Exhibit C), and (8) compilation of public comments and the Tribe's response thereto (Attachment 4, Exhibit H, Attachment 5).
        V. Proposed Action
        EPA is proposing to approve the Mashantucket Pequot Tribal Nation's Tribal Implementation Plan under the Clean Air Act to regulate air pollution within the exterior boundaries of the Tribe's reservation. In this action we propose to act only on those portions of MPTN's CAP that constitute a TIP containing severable elements of an implementation plan under CAA section 110(a). The proposed TIP includes permitting requirements for major and minor sources of air pollution. Specifically, we are proposing to approve the following sections of the MPTN's air quality regulations. Title 12, Subtitle 12.1, § 2—Applicability (with effective date); Title 12, Subtitle 12.1, § 4—Definitions; and Title 12, Subtitle 12.2—New Source Review—MPTN TIP.

        EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register.
        VI. Incorporation by Reference

        In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the MPTN rules discussed in section III. and IV. of this preamble. The EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at the EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).
        VII. Statutory and Executive Order Reviews
        Under the Clean Air Act, the Administrator is required to approve a TIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing TIP submissions, EPA's role is to approve tribal choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves tribal law as meeting Federal requirements and does not impose additional requirements beyond those imposed by tribal law. For that reason, this proposed action:
        • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
        • Is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866;

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

        • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
        • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
        • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

          List of Subjects in 40 CFR Part 49
          Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.

          Authority:
          42 U.S.C. 7401 et seq.

          Dated: August 18, 2020.
          Deborah Szaro,
          Acting Regional Administrator, EPA Region 1.

      [FR Doc. 2020-18397 Filed 9-8-20; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 595
        [Docket No. NHTSA-2009-0065]
        RIN 2127-AK22
        Make Inoperative Exemptions; Head Restraints

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

          ACTION:
          Response to petition; Notice of proposed rulemaking (NPRM).

          SUMMARY:
          This notice of proposed rulemaking is being issued in response to a petition from Bruno Independent Living Aids to expand and update existing exemptions to the “make inoperative” prohibition with respect to the Federal motor vehicle safety standard on head restraints. These exemptions are included in a regulation that provides exemptions for the “make inoperative” provision for, among other things, vehicle modifications to accommodate people with disabilities. NHTSA is proposing two substantive changes to the regulation. The first is to expand the exemption from the minimum height requirements listed in the head restraint standard to include the right front passenger position in addition to the driver position. The second is to update the exemption to include relevant provisions of a new version of the head restraint standard. Additionally, this document proposes to update an existing reference in the exemption to reflect the current numbering in the Code of Federal Regulations. Finally, we are denying other requests to expand the exemption to certain other requirements of the head restraint standard.

          DATES:
          You should submit our comments early enough to ensure that Docket Management receives them not later than February 16, 2010.

          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: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
          • Hand Delivery or Courier: 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
          • Fax: 202-493-2251.

            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 heading 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) or you may visit http://DocketInfo.dot.gov.

            Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov or the street address listed above. Follow the online instructions for accessing the dockets.

          FOR FURTHER INFORMATION CONTACT:

          For technical issues, you may contact Ms. Gayle Dalrymple, Office of Crash Avoidance Standards, NVS-123 (E-mail: gayle.dalrymple@dot.gov) (Telephone: 202-366-2720) (Fax: 202-493-2739).

          For legal issues, you may contact Mr. Ari Scott, Office of Chief Counsel, NCC-112 (E-mail: ari.scott@dot.gov) (Telephone: 202-366-2992) (Fax: 202-366-3820).
          You may send mail to these officials at National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Background
          a. History of the Make Inoperative Exemptions
          b. Current Exemptions in Part 595 Regarding Head Restraints
          c. Petition for Rulemaking
          II. Response to Petition
          a. Agency Analysis of the Safety Benefits of the TAS and Similar Systems
          b. Response to Requested for Changes to Part 595
          i. Proposal To Expand the Current Head Restraint Exemption to Right Front Passengers
          ii. Proposal To Update the Exemptions to Reflect Standard No. 202a
          1. Proposal To Update Paragraph (c)(8)
          2. Proposal To Update the Paragraph (c)(9) Exemption to Include Head Restraint Height and Width Requirements for Drivers and Minimum Height Requirements for Right Front Passengers
          3. Reasons for Denying Bruno's Petition to Expand the Exemption for Vehicle Passenger Positions To Include Paragraphs S4.2.1(a) and S4.2.2 through S4.2.7
          iii. Correcting Reference to Paragraph S4.3 of Standard No. 202
          III. Proposed Effective Date
          IV. Rulemaking Analysis
          V. Proposed Regulatory Text

        I. Background
        a. History of the Make Inoperative Exemptions

        Federal law requires vehicle manufacturers to certify that their vehicles comply with all applicable Federal motor vehicle safety standards (FMVSSs) (see 49 U.S.C. 30112). A vehicle manufacturer, distributor, dealer, or repair business generally may not knowingly make inoperative any part of a device or element of design installed in or on a motor vehicle in compliance with an applicable standard (see 49 U.S.C. 30122). However, the National Highway Traffic Safety Administration (NHTSA) has the authority to issue regulations that exempt regulated entities from the make inoperative provision (see 49 U.S.C. 30122(c)).

        On February 27, 2001, the agency issued a final rule (66 FR 12638) establishing exemptions from the make inoperative provisions for certain sections of several FMVSSs under certain limited circumstances when vehicles are modified to be used by persons with disabilities. This rulemaking was undertaken to facilitate the modification of motor vehicles so that persons with disabilities can drive or ride in them. Since the publication of the 2001 rule, NHTSA has made updates to the exemptions to keep pace with changes in the standards for which those exemptions were written. An example of such a change includes a final rule issued on August 31, 2005 (70 FR 51673) adding exemptions for the updated sections of FMVSS No. 201, Occupant Protection in Interior Impact, and FMVSS No. 208, Occupant Crash Protection, as well as establishing an exemption for FMVSS No. 225, Child Restraint Anchorage Systems.

        b. Current Exemptions in Part 595 Regarding Head Restraints

        Currently, there are two portions of part 595 that deal with the head restraint requirements in Standard No. 202, Head Restraints. These exemptions from the make inoperative provision to accommodate people with disabilities include 49 CFR 595.7(c)(8), which provides an exemption from all requirements of Standard No. 202 for vehicles modified to accommodate a driver or right front passenger seated in a wheelchair and no other seat is provided, as well as 49 CFR 595.7(c)(9), which provides an exemption from the driver side head restraint height/width requirements for vehicles modified to accommodate drivers with a disability. There are currently no exemptions in Part 595 that pertain to the requirements in the upgraded FMVSS No. 202a.
        c. Petition for Rulemaking
        On January 2, 2007 NHTSA received a petition for rulemaking from Bruno Independent Living Aids (Bruno) requesting that we amend part 595 to add an exemption for passengers' side head restraint systems. In submitting its petition, Bruno wished to facilitate use of its product, called Turning Automotive Seating (TAS), which provides access to motor vehicles to people with disabilities. This device consists of a rotating, motorized seat, which replaces the OEM seat in a motor vehicle. The TAS pivots from the forward-facing driving position to the side-facing entry position and extends outward and lowers to a suitable transfer height, providing the driver and/or passenger easy entry into the vehicle. The transfer into the seat takes place while outside the vehicle, and the occupant remains in the seat during the entry process, using OEM seat belts while traveling in the vehicle. Exiting the vehicle is accomplished by reversing the process. Another TAS option is a mobility base, which converts the automotive seat into a wheelchair, eliminating the need for transferring from the seat altogether. Bruno states that TAS systems provide mobility-impaired persons with safer and easier ways to enter and exit a vehicle.
        In its petition, Bruno states that the TAS provides substantial safety benefits. As a basis for this claim, Bruno cites a NHTSA Research published in 1997.1

           In this note, the agency stated that between 1991 and 1995, 7,121 people were killed or injured due to the following reasons: improper or no securement, lift malfunction, transferring to or from a motor vehicle, falling on or off the ramp, and a collision between the wheelchair and a motor vehicle.2
           According to Bruno's petition, the TAS will help prevent 74% of those injuries—which includes all injuries except those occurring when a wheelchair is struck by a motor vehicle. This is because the TAS will provide wheelchair users an easy and safe way to enter and exit these vehicles.

            1 Wheelchair Users Injuries and Deaths Associated with Motor Vehicle related Incidents, September 1997, available at http://www.nhtsa.dot.gov.

            2 Id., Table 2.

        Bruno indicated that the TAS currently complies with FMVSS No. 202. However, the clearance between the top of the head restraint and the door opening can restrict the number of viable vehicle applications. Bruno also stated that the increased head restraint height required by the new FMVSS No. 202a will significantly reduce the number of available vehicle applications.
        To facilitate the installation of the TAS on vehicles, Bruno requested that the make inoperative exemptions of 49 CFR part 595 be expanded and updated to cover both driver and passenger side head restraints, for persons not in a wheelchair, to reflect the new FMVSS No. 202a. Bruno suggested that the expanded exemptions it requires be added to either or both of the current Part 595 exemptions addressing head restraints.
        In requesting that the exemptions be updated to reflect the new FMVSS No. 202a, Bruno requested that the make inoperative provisions that provide exemptions to portions of FMVSS No. 202 be extended to cover the equivalent portions of FMVSS No. 202a. Additionally, that company requested that the exemptions in part 595 be expanded to cover several aspects of FMVSS No. 202a that are not currently provided for FMVSS No. 202. Specifically, Bruno requested more broadly that Part 595 be updated to include an exemption for 49 CFR 571.202a S4.2.1 through S4.2.7. These paragraphs encompass requirements on minimum height, width, backsets, gaps, energy absorption, height retention, backset retention, displacement, and strength.
        Finally, Bruno noted an error where § 595.7(c)(9) mistakenly points to S4.3 of Standard No. 202, instead of S4.2. In the current version of FMVSS No. 202, paragraph S4.3 contains documents incorporated by reference, while paragraph S4.2 contains the requirements for head restraints at issue.
        II. Response to Petition
        NHTSA has decided to partially grant Bruno's petition. Specifically, and as discussed below, we are proposing to extend the height exemption in paragraph (c)(9) to cover the head restraints for the right front passenger as well as the driver. Additionally, we are proposing to update the exemption to cover the relevant portions of FMVSS No. 202a addressing height and width, and to correct the reference to paragraph S4.3 noted by Bruno. We are denying Bruno's request to provide exemptions for portions of FMVSS No. 202a other than ones addressing the height/width of head restraints. We are also proposing to update the exemption in paragraph (c)(8) to cite FMVSS No. 202a.
        a. Agency Analysis of the Benefits of the TAS and Similar Systems
        As stated above, Bruno made several arguments as to why the TAS provides safety and other benefits for people with disabilities. Therefore, it argues, it is in the public interest to expand the make inoperative provision of part 595 to facilitate the installation of the TAS in vehicles. The agency believes that these potential benefits apply not only to the TAS, but to similar systems that allow people with disabilities to enter and exit a vehicle in a similar fashion. In particular, the agency generally agrees that the TAS, and similar systems, provide benefits for people with disabilities, who may have difficulty entering or exiting a motor vehicle. Among other things, these systems permit people to enter and exit vehicles in a sitting position, without the need to climb or descend the height differential between the floor of the vehicle and the ground. In this fashion, they provide benefits in allowing people with disabilities to retain their mobility.
        While there may be some degradation in whiplash protection if the minimum size requirements of Standard No. 202 and 202a are not adhered to, it is our tentative conclusion that the benefits for people with disabilities outweigh those potential drawbacks. Therefore, we are proposing several amendments to part 595 to facilitate the installation of these kinds of systems.
        b. Response to Request for Changes to Part 595
        i. Proposal To Expand the Current Head Restraint Exemption to Right Front Passengers
        Section 595.7(c)(9) provides an exemption with regard to the height and width of the head restraint, as stated in paragraphs S4.2(b)(1) and (2) of FMVSS No. 202. This provision was established at the time of the first make inoperative final rule because NHTSA was aware of drivers who had a limited range of motion in turning their heads, and a head restraint of the size required by FMVSS No. 202 could interfere with the driver's ability to look behind for a lane change or backing.3
           We did not provide the exemption for passenger seating positions because we wished to keep the exemptions as narrow as possible, and we were not aware of any needs for changes to passengers' head restraints.

            3 Id.

        With the advent of new technology such as the TAS, head restraint height becomes a problem for passenger seating positions as well, due to the problem of clearance between the head restraint and door opening. We believe the requested exemption is a reasonable trade-off of some possible degradation in whiplash protection in exchange for facilitating vehicle entry and exit, and the value of mobility for people with disabilities. Therefore, we are proposing to expand the exemption in § 595.7(c)(9) regarding height to include right front passengers.

        We note that, in its petition, Bruno stated that the “remedy we seek is an amended 49 CFR part 595 Exemption in § 595.7(c)(8)(i), (c)(8)(ii), and/or (c)(9) to accommodate both drivers and passengers, not in a wheelchair, in a vehicle modified for persons with a disability to drive or be transported” [emphasis in original]. It appears that Bruno was requesting that the agency modify part 595 to accommodate the TAS either by amending the exemption in paragraph (c)(8), or that in paragraph (c)(9). In order to achieve the maximum safety benefit of the regulations, it is our desire to provide the narrowest exemption possible in order to accommodate the needs of disabled persons, without expanding its use to situations where the benefits of the exemption may be outweighed by the drawbacks of noncompliance with the safety standard.

        Currently, § 595.7(c)(8) provides an exemption from the entirety of FMVSS No. 202 for vehicles modified to accommodate either a driver ((c)(8)(i)) or right front passenger ((c)(8)(ii)) in a vehicle in which no respective seat is supplied with the vehicle. This provision was written to allow for the situation in which the vehicle was modified to use a wheelchair as a vehicle seat and no other seat was provided. If there is no seat, there is no head restraint, and therefore FMVSS No. 202 would have been made inoperative. By contrast, § 595.7(c)(9) provides, for driver head restraints, an exemption from the minimum dimension requirements set forth in paragraph S4.3(b).
        Given the two alternatives of providing an exemption from the whole standard, or just giving an exemption from the requirements relating to the dimensions of the head restraint, we are not proposing modification of § 595.7(c)(8) in order to accommodate systems such as the TAS.
        Section 595.7(c)(9) grants a more narrow exemption with regard to the size of the head restraint, as stated in paragraphs S4.2(b)(1) and (2) of FMVSS No. 202. Since expansion of this more narrow exemption would accommodate systems such as the TAS, we believe it is the more appropriate approach to take.
        ii. Proposal To Update the Exemptions To Reflect Standard No. 202a
        1. Proposal To Update Paragraph (c)(8)
        Currently, § 595.7(c)(8) contains an exemption for vehicles where either the entire driver's seat or right front passenger's seat is removed so that the position may be occupied by a person seated in a wheelchair and no other seat is delivered with the vehicle. This exemption currently provides an exemption from Standard No. 202 in its entirety for those vehicles. For the reasons stated above, NHTSA is not proposing that paragraph (c)(8) be expanded to include passengers other than those whose only vehicle seat is a wheelchair. However, NHTSA is proposing to update the exemption in paragraph (c)(8) to include an exemption from Standard No. 202a as well. This will continue to allow vehicles to be modified such that wheelchairs can be used in lieu of other vehicle seats.
        2. Proposal To Update the Paragraph (c)(9) Exemption To Include Head Restraint Height and Width Requirements for Drivers and Minimum Height Requirements for Right Front Passengers
        Section 595.7(c)(9) already contains a provision permitting an exemption for the driver's head restraint from Standard No. 202 S4.2(b)(1) and (2), which set the minimum requirements for the height and width of a head restraint, as stated above. The portions of Standard No. 202a that correspond to S4.2(b)(1) and (2) of Standard No. 202 are paragraph S4.2.1(b) and S4.2.2, respectively. For reasons of clarity, in the proposed changes to part 595, we are placing the exemptions from the height requirements of FMVSS No. 202a in paragraph (c)(9)(iii), and the exemption from the width requirement in FMVSS No. 202a in paragraph (c)(9)(iv). Therefore, for the regulatory text to reflect the continuity of this exemption, we are proposing several changes. The first, reflected in § 595.7(c)(9)(iii), is to include a reference to paragraph S4.2.1(b) of Standard No. 202a in § 595.7(c)(9). Similarly, we are including a reference to S4.2.2 of Standard No. 202a in § 595.7(c)(9)(iv), to update the current exemption for the driver's head restraint to include the updated FMVSS. This will enable the current exemption to apply to Standard No. 202a in addition to Standard No. 202.
        With regard to the passenger seating position, and in accordance with the petition for rulemaking, NHTSA is proposing to expand the exemption in § 595(c)(9) to include an exemption from the minimum height requirements of 49 CFR 571.202a, S4.2.1(b), for the right front passenger position. As stated above with regard to the proposed expansion of Part 595 to the right front passenger head restraint requirements of FMVSS No. 202, we believe that this will facilitate the use of motor vehicles by persons with disabilities. As this relates to the minimum height requirement, this exemption will also be included in § 595.7(c)(9)(iii). Therefore, we are proposing to add regulatory text to § 595.7(c)(9), which reads:
        • For vehicles manufactured on and after March 14, 2005 and certified to FMVSS No. 202a, S4.2.1(b) of 49 CFR 571.202a, in any case in which the head restraint must be modified to accommodate a driver or a front outboard passenger with a disability.
        • For vehicles manufactured on and after March 14, 2005 and certified to FMVSS No. 202a, S4.2.2 of 49 CFR 571.202a, in any case in which the head restraint must be modified to accommodate a driver with a disability.
        3. Reasons for Denying Bruno's Petition To Expand the Exemption for Vehicle Passenger Positions To Include Paragraphs S4.2.1(a) and S4.2.2 Through S4.2.7
        In its petition, Bruno requested that the exemption in 59 CFR 595.7 be expanded to include an exemption for paragraphs S4.2.1 through S4.2.7 of FMVSS No. 202a for all vehicle passenger positions. NHTSA, however, is proposing to limit the scope of the exemption to paragraph S4.2.1(b) (minimum height requirement). The other requirements listed in the paragraphs referenced by Bruno include:

        • A requirement that the front head restraints be able to attain a height of at least 800 mm in at least one position of adjustment (see paragraph S4.2.1(a)).

        • Width requirements similar to those listed in the current version of FMVSS No. 202 (see paragraph S4.2.2).

        • New requirements limiting the distance between the back of the occupant's head and the head restraint on front head restraints (see paragraph S4.2.3).

        • Limits on the size of gaps and openings in front restraints (see paragraph S4.2.4).
        • New energy absorption criteria (see paragraph S4.2.5).
        • New height retention criteria (see paragraph S4.2.6).

        • Certain height, strength, position retention, and energy absorption levels for voluntarily installed rear head restraints (see paragraph S4.2.7).
        Bruno's petition described the potential problems if the TAS must adhere to all provisions of Standard No. 202a. Essentially, the problem was that the head restraint, attached to the TAS, would be too large, when installed in some vehicles, to clear the door frame on its path to provide an easy-to-access seat for a mobility-impaired driver or passenger.
        Our reason for denying the petition for an exemption for the requirements in Standard No. 202a, other than S4.2.1(b), is that Bruno has not provided a rationale for expanding the exemption to cover those areas of Standard No. 202a. Furthermore, most of these requirements are not dimensional in nature, and should not affect the ability of systems such as the TAS to enter and exit the vehicle. While the requirement in paragraph S4.2.1(a) is dimensional, it is a requirement that the head restraint be able to reach a certain height in only one position of adjustment. Therefore, because the head restraint can be lowered from that height, it should not interfere with the ability of the TAS to enter or exit the vehicle. We also note that the requirement in S4.2.2 is dimensional, and is discussed below.
        As Bruno stated in its petition:

          [S]ince the entire seat rotates and exits the vehicle while assisting the occupant's access, clearance between the top of the head restraint and the door opening can restrict the number of viable vehicle applications. In first row applications, the rearward-slanted A-pillar is often the controlling feature for seat head restraint clearance with a large radius joining the top of the door opening. The increased head restraint height of FMVSS 202a will significantly reduce the number of vehicle applications where people with disabilities will have safe vehicle access with a Bruno TAS seat. [emphasis added]

        Based on this statement, NHTSA understands the need for an exemption for the head restraint height requirement in FMVSS No. 202a, S4.2.1(b). However, Bruno did not provide reasons that the other requirements of FMVSS No. 202a (i.e., those listed in paragraphs S4.2.1(a) and S4.2.2 through S4.2.7) would impede installation of the TAS. Therefore, in keeping with our desire to keep the exemptions as narrow as possible, we are not proposing to provide exemptions for these other requirements.
        NHTSA notes that Bruno did not provide a rationale for why an exemption for the width requirement is needed for the passenger seat. However, because the A-pillar slopes forward as it heads toward the roof of the vehicle, it is possible that the width of the head restraint (as required by paragraph S4.2.2) may also cause the A-pillar to interfere with the TAS as it attempts to exit and enter the vehicle. Therefore, we request comment on whether an exemption from S4.2.2 of FMVSS No. 202a for the front outboard passenger seat should also be included in the final rule. Additionally, we request comments on whether any of the additional exemptions requested by Bruno may be relevant to facilitate mobility for persons with disabilities.
        iii. Correcting Reference to Paragraph S4.3 of Standard No. 202

        As discussed above, paragraph (c)(9) of 49 CFR part 595 contains a make inoperative exemption for FMVSS No. 202, Head Restraints. The current exemption was added as part of the original rulemaking creating part 595 on February 27, 2001.4
           This exemption currently reads: “S4.3(b)(1) and (2) of 49 CFR 571.202, in any case in which the driver's head restraint must be modified to accommodate a driver with a disability.”

            4 It should be noted that in the original rulemaking establishing Part 595, the exemption erroneously referred to paragraphs S3(b)(1) and S3(b)(2) of FMVSS No. 202, which do not exist. This was changed to S4.3(b)(1) and S4.3(b)(2) in a correction notice issued April 20, 2004 (69 FR 21069).

        The sections of FMVSS No. 202 (the version in place in 2001 when the make inoperative exemptions were put into place) to which the above section refers read: “S4.3(b) It shall, when adjusted to its fully extended design position, conform to each of the following: (1) When measured parallel to torso line, the top of the head restraint shall not be less than 700 mm above the seating reference point; (2) When measured either 64 mm below the top of the head restraint or 635 mm above the seating reference point, the lateral width of the head restraint shall not be less than i. 254 mm for use with bench-type seats; and ii. 171 mm for use with individual seats;”
        Since the make inoperative exemption for FMVSS No. 202 was first put in place, NHTSA has changed and upgraded FMVSS No. 202. There are two parts to this change. First, on December 14, 2004, NHTSA published FMVSS No. 202a (69 FR 74883), which is an updated version of FMVSS No. 202 and subject to a phase-in, becomes mandatory beginning on September 1, 2009. Manufacturers also have the option to comply with FMVSS No. 202 or FMVSS No. 202a during an interim period. Second, the current version of FMVSS No. 202 (which, at the manufacturer's option, is applicable to vehicles manufactured during this interim period) has been updated to allow manufacturers to comply with either the existing version of FMVSS No. 202, ECE 17, or FMVSS No. 202a. The December 14, 2004 final rule also changed the paragraph numbering of FMVSS No. 202. The requirements that were formerly given in S4.3 are now located in S4.2. Because of these changes, it is necessary to update the make inoperative exemption to be consistent with the numbering in the current FMVSS No. 202. Therefore, NHTSA is proposing to correct § 595.7(c)(9) to account for this change.
        As § 595 may be applied to vehicles certified under different versions of Standard No. 202 (depending on the vehicle's date of manufacture), NHTSA is proposing an amendment to split this part of the exemption into two parts. The proposed regulatory text for the portion of 49 CFR 595.7(c)(9) at issue is:
        • For vehicles manufactured before March 14, 2005, S4.3(b)(1) and (2) of 49 CFR 571.202, in any case in which the driver's head restraint must be modified to accommodate a driver with a disability.
        • For vehicles manufactured on or after March 14, 2005 and certified to FMVSS No. 202, S4.2(b)(1) and (2) of 49 CFR 571.202, in any case in which the head restraint must be modified to accommodate a driver with a disability.
        This text will have the same effect as the text in 595.7(c)(9) does currently. However, it will help to alleviate the confusion currently caused by the fact that the text references only paragraph S4.3, which now lists items incorporated by reference in the current version of the CFR. For vehicles manufactured before March 14, 2005, the reference will continue to point to S4.3, the proper paragraph of the CFR as it existed at the time the vehicle was certified. For vehicles manufactured after that date, the reference will point to paragraph S4.2, which is the correct citation of the CFR as it existed when those vehicles were certified.
        III. Proposed Effective Date
        Because this proposal would remove a restriction on the modification of vehicles for persons with disabilities, NHTSA anticipates making this amendment effective 30 days after the publication of a final rule under the Administrative Procedure Act, 5 U.S.C. 553(d).
        IV. Rulemaking Analysis
        Executive Order 12866 and DOT Regulatory Policies and Procedures
        NHTSA has considered the impact of this rulemaking action under E.O. 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” NHTSA has analyzed this proposal and determined that it is not considered to be significant under E.O. 12866 or the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). NHTSA has also determined that the effects are so minor that a separate regulatory evaluation is not needed to support the subject rulemaking. For this particular proposal, no costs will be imposed by the agency's actions. The cost of doing business for the vehicle modification industry will not be changed by the subject proposal, and if anything, there could be a cost savings due to the proposed exemptions.
        Modifying a vehicle in a way that degrades the performance of head restraints could produce some negative safety effects for the occupants of the vehicle. However, the number of vehicles potentially modified would be very few in number, and the agency believes any disbenefits would be minimal. This is essentially the trade-off that NHTSA is faced with when increasing mobility for persons with disabilities—when necessary vehicle modifications are made, some safety may unavoidably be lost to gain personal mobility.
        Regulatory Flexibility Act
        Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.
        NHTSA has considered the effects of this proposed rule under the Regulatory Flexibility Act. Most dealerships and repair businesses are considered small entities, and a substantial number of these businesses modify vehicles to accommodate individuals with disabilities. I certify that this proposed rule would not have a significant economic impact on a substantial number of small entities. While most dealers and repair businesses would be considered small entities, the proposed exemption would not impose any new requirements, but would instead provide additional flexibility. Therefore, a Preliminary Regulatory Flexibility Analysis is not required.
        Executive Order 13132 (Federalism)
        NHTSA has examined today's NPRM 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 rule does not have federalism implications because the rule does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
        As this proposal is only to provide an exemption from a Federal requirement, we do not foresee that it will have any preemptive effect on State laws. We are unaware of any State law that would prohibit the actions permitted by this rule under Federal law.
        Executive Order 12988 (Civil Justice Reform)
        When promulgating a regulation, Executive Order 12988 specifically requires that the agency must 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 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.
        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 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. No voluntary standards exist regarding this proposed exemption for modification of vehicles to accommodate persons with disabilities.
        Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act of 1995 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 (adjusted for inflation with base year of 1995). This proposed exemption would not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually.
        National Environmental Policy Act
        NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.
        Paperwork Reduction Act
        Under the Paperwork Reduction Act of 1995 (PRA), 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. This proposal does not contain any new reporting requirements or requests for information.
        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 include them in your comments on this proposal.
        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.
        V. Proposed Regulatory Text

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

        In consideration of the foregoing, we propose 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 § 595.7 by revising paragraphs (c)(8) and (c)(9) to read as follows:

            § 595.7
            Requirements for vehicle modifications to accommodate people with disabilities.

            (c) * * *
            (8) 49 CFR 571.202 and 571.202a, in any case in which:
            (i) A motor vehicle is modified to be operated by a driver seated in a wheelchair and no other seat is supplied with the vehicle for the driver;
            (ii) A motor vehicle is modified to transport a right front passenger seated in a wheelchair and no other right front passenger seat is supplied with the vehicle; or (9) (i) For vehicles manufactured before March 14, 2005, S4.3(b)(1) and (2) of 49 CFR 571.202, in any case in which the driver's head restraint must be modified to accommodate a driver with a disability.
            (ii) For vehicles manufactured on or after March 14, 2005 and certified to FMVSS No. 202, S4.2(b)(1) and (2) of 49 CFR 571.202, in any case in which the head restraint must be modified to accommodate a driver with a disability.
            (iii) For vehicles manufactured on and after March 14, 2005 and certified to FMVSS No. 202a, S4.2.1(b) of 49 CFR 571.202a, in any case in which the head restraint must be modified to accommodate a driver or a front outboard passenger with a disability.
            (iv) For vehicles manufactured on and after March 14, 2005 and certified to FMVSS No. 202a, S4.2.2 of 49 CFR 571.202a, in any case in which the head restraint must be modified to accommodate a driver with a disability.

            Issued: December 10, 2009.
            Stephen R. Kratzke,
            Associate Administrator for Rulemaking.

      [FR Doc. E9-29889 Filed 12-17-09; 8:45 am]
      BILLING CODE P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        RIN 0648-BG81
        Fisheries Off West Coast States; Highly Migratory Fisheries; Amendment 5 to the Highly Migratory Species Fishery Management Plan; California Drift Gillnet Fishery; Implementation of a Federal Limited Entry Drift Gillnet Permit

          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 announces that the Pacific Fishery Management Council (Council) has submitted Amendment 5 to the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP) for review by the Secretary of Commerce. The intent of Amendment 5 is to implement a federal limited entry (LE) permit for the California/Oregon large-mesh drift gillnet (DGN) fishery. The amendment would bring the State of California's LE DGN permit program under Magnuson-Stevens Fishery Conservation and Management Act (MSA) authority. All current California DGN permit holders would be eligible to apply for, and receive, a federal DGN permit and no additional DGN permits would be created. The amendment is administrative in nature and is not anticipated to result in increased activity, effort, or capacity in the fishery.

          DATES:
          Comments on Amendment 5 must be received by November 14, 2017.

          ADDRESSES:
          You may submit comments identified by NOAA-NMFS-2017-0052, by any one of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0052, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Lyle Enriquez, NMFS West Coast Region, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802. Include the identifier “NOAA-NMFS-2017-0052” in the comments.
          • Instructions: Comments must be submitted by one of the above methods to ensure they are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Copies of Amendment 5 and other supporting documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2017-0052 or by contacting the Regional Administrator, Barry Thom, NMFS West Coast Region, 1201 NE Lloyd Blvd., Portland, OR 97232-2182, or RegionalAdministrator.WCRHMS@noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
          Lyle Enriquez, NMFS, West Coast Region, 562-980-4025, or Lyle.Enriquez@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The HMS FMP was prepared by the Council and is implemented under the authority of the MSA by regulations at 50 CFR part 660. Although it adopted all conservation and management measures in place under various federal statutes (e.g., Marine Mammal Protection Act, Endangered Species Act) and state regulations, the HMS FMP did not incorporate the LE DGN permit programs of California and Oregon. Currently, the large-mesh DGN fishery (14″ minimum mesh size) is federally managed under the HMS FMP and via regulations of the states of California and Oregon to conserve target and non-target stocks, including protected species that are incidentally captured. California has an active LE DGN program, Oregon no longer issues DGN permits, and DGN fishing is prohibited in Washington.
        Since 2014, the Council has considered transitioning California's LE DGN permit program from state to MSA authority. On March 12, 2017, the Council adopted a final preferred alternative that would transition the State of California issued LE DGN permit program from state management to federal management under MSA authority and entitle all fishermen authorized to fish with large-mesh DGN gear under state law to be eligible to receive a federal LE DGN permit. As of August 31, 2017, 70 California LE DGN permits were issued for the 2016-2017 fishing season, and 67 have been renewed for the 2017-2018 fishing season. The average number of active DGN vessels per year from 2010 through 2016 is 20 vessels. The action would neither increase capacity within the DGN fishery, nor would it incentivize or stimulate fishing effort or activity of current latent permits. After the initial issuance of a federal DGN permit, no additional permits would be issued, and permits that are not renewed in future years would be permanently expired by NMFS.
        In order to participate in the DGN fishery, current participants must possess a State of California LE DGN permit, a California commercial fishing license, a California general gill/trammel net permit, and a California swordfish permit. Additionally, the vessel that the participant fishes from must have a federal Pacific Highly Migratory Species (HMS) permit with a DGN gear endorsement. After the LE DGN permit transitions from the State of California to federal management, each participant will need to hold all the same permits and licenses, except that the federal LE DGN permit will take place of the State of California LE DGN permit. Although these permits and licenses would be required to fish, possession of a current and up-to-date State of California LE DGN permit is the only permit required to initially obtain a federal LE DGN permit.

        This amendment would adopt many of the current State of California management measures associated with the fishery. For example, NMFS would adopt current California requirements regarding the assignment of a permit (i.e., issued to an individual and assigned to a specific vessel), the transfer of permits between permittees (i.e., a permit must be held for three years before it is eligible to be transferred), and an annual renewal cycle.
        Upon the date of publication of the final rule to implement Amendment 5, all 70 state-eligible permit holders would be eligible to receive a federal DGN permit if they have renewed their state DGN permit by March 31, 2018. Permit holders who fail to renew their state DGN permit by March 31, 2018, will not be eligible for a federal DGN permit. As of August 31, 2017, 67 permittees have renewed their state LE DGN permit. If a state LE DGN permit is transferred after publication of the proposed rule to implement Amendment 5, the transferee, but not the transferor, would be eligible to receive a federal LE DGN permit upon publication of the final rule.

        Federal LE DGN permits would be issued annually for the fishing year starting April 1 and ending March 31 of the following year. Permits would expire on March 31 of each year and, after initial issuance (expected in 2018), the permit renewal deadline would be April 30 of the fishing year. A completed DGN permit renewal form must be received by NMFS no later than close-of-business April 30. Any renewal form received after that date would result in the permanent expiration of the Federal DGN permit. A permit owner who fails to submit a renewal by the deadline may submit a renewal form to NMFS with a written statement that the failure to renew the permit by the deadline was proximately caused by the permit owner's illness or injury. When a permit owner has died, the owner's estate or other personal representative may submit a statement explaining that the permit owner's death has prevented a timely renewal. The permit holder, or in the case of a deceased permit owner, the estate or other personal representative, will need to provide written proof of illness, injury or death. NMFS will not consider any such renewal request made after July 31. If the permit expires, it would permanently expire and NMFS would not reissue the permit. A permittee would need to hold a federal LE DGN permit for three or more years before it would be eligible to be transferred. This vesting period would extend across both state and federal permit programs (i.e., if a permit holder held a state LE DGN permit for two years and a federal LE DGN permit for one year, the permit may be transferred).
        Public comments on Amendment 5 must be received by November 14, 2017, to be considered by NMFS in the decision whether to approve, disapprove, or partially approve Amendment 5. NMFS expects to publish and request public comment on the proposed regulation to implement Amendment 5 in the near future. Public comments on the proposed rule must be received by the end of the comment period on the amendment to be considered in the approval/disapproval decision on the amendment. All comments received during the comment period for the amendment, whether specifically directed to the amendment, or the proposed rule, will be considered in the approval/disapproval decision.

          Authority:
           16 U.S.C. 1801 et seq.

          Dated: September 12, 2017.
          Emily H. Menashes,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2017-19662 Filed 9-14-17; 8:45 am]
       BILLING CODE 3510-22-P