        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 70
        [EPA-R08-OAR-2011-0015; FRL-9277-9]
        Clean Air Act Proposed Interim Approval of Title V Operating Permits Program; Southern Ute Indian Tribe

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The EPA proposes interim approval of the Title V Operating Permits Program submitted by the Southern Ute Indian Tribe (Tribe). The Tribe's Title V Operating Permit Program (Title V Program) was submitted for the purpose of administering a tribal program for issuing operating permits to all major stationary sources, and certain other sources on the Southern Ute Indian Reservation (Reservation).

          DATES:
          Comments on this proposed action must be received on or before April 8, 2011. Comments should be addressed to the contact indicated below.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R08-OAR-2011-0015, by one of the following methods:
          • http://www.regulations.gov. Follow the on-line instructions for submitting comments.
          • E-mail: lebow-aal.deborah@epa.gov and north.alexis@epa.gov.

          • Mail: Deborah Lebow Aal, Acting Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129.
          • Hand Delivery: Deborah Lebow Aal, Acting Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2011-0015. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

            Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly-available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          Alexis North, Air Program, Mailcode  8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-7005, or north.alexis@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Definitions
        For the purpose of this document, we are giving meaning to certain words or initials as follows:
        (i) The word Act or initials CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.
        (ii) The word Commission means the joint Southern Ute Indian Tribe/State of Colorado Environmental Commission.
        (iii) The words EPA, we,
          us or our mean or refer to the United States Environmental Protection Agency.
        (iv) The word Title V Program means the Tribe's Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated January 14, 2009 and the subsequent Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010.
        (v) The word Tribe means the Southern Ute Indian Tribe, unless the context indicates otherwise.
        Table of Contents

          I. General Information
          A. What Should I Consider as I Prepare My Comments for EPA?
          1. Submitting CBI
          2. Tips for Preparing Your Comments
          II. What is Being Addressed in This Document?
          III. Evaluation of the Tribe's Authorities
          A. Current Tribal Authority
          B. Reasonably Severable Title V Program Elements
          C. Criminal Enforcement Memorandum of Understanding
          IV. Evaluation of the Tribe's Title V Program Elements
          A. Analysis of the Tribe's Title V Program Submission pursuant to 40 CFR 70.4(b)
          1. Complete Title V Program Description
          2. Regulations Compromising the Title V Program
          3. Legal Opinion
          4. Relevant Title V Program Documentation
          5. Compliance Tracking
          6. Application Completeness Determination
          7. Fee Demonstration
          8. Statement of Adequate Personnel
          9. Submission Commitment
          10. Failure to Issue Permit in a Timely Manner
          11. Transition Plan
          12. Off Permit Changes
          13. Expeditious Permit Revisions and/or Modifications Review
          14. Tribe Only Revisions
          15. Permit Changes Subject to Title I and IV of the Act
          16. Permit Content and Permit Issuance, Renewal, Re-openings and Revisions
          B. Options for Approval/Disapproval and Implications
          V. What action is EPA taking?
          VI. Statutory and Executive Order Reviews

        I. General Information
        A. What should I consider as I prepare my comments for EPA?
        1. Submitting CBI. Do not submit this information to EPA through http://www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
        2. Tips for Preparing Your Comments. When submitting comments, remember to:

        a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
        b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
        c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
        d. Describe any assumptions and provide any technical information and/or data that you used.
        e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
        f. Provide specific examples to illustrate your concerns, and suggest alternatives.
        g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
        h. Make sure to submit your comments by the comment period deadline identified.
        II. What is being addressed in this document?
        Under Title V of the Clean Air Act (the Act or CAA) as amended (1990), EPA has promulgated rules that define the minimum elements of an interim approval of a Title V operating permits program for state and tribal permitting authorities. The corresponding standards and procedures by which the EPA will approve, oversee, and withdraw approval of state and tribal Title V operating permits programs can be found at 57 FR 32250 (July 21, 1992) and 63 FR 1322 (January 10, 2000) and codified at 40 CFR part 70.
        In addition, as part of the 1990 Amendments to the CAA, Congress enacted Section 301(d) authorizing EPA to “treat Indian tribes as states” under the Act so that tribes may develop and implement CAA programs in a similar manner as states within tribal reservations or in other areas subject to tribal jurisdiction. Section 301(d)(2) of the Act authorizes EPA to promulgate regulations specifying those provisions of the CAA “for which it is appropriate to treat Indian tribes as States.” 42 U.S.C. 7601(d)(2).
        On February 12, 1998, EPA issued a final rule specifying those provisions of the CAA for which it is appropriate to treat eligible Indian tribes in a similar manner as states, known as the Tribal Authority Rule (TAR). 63 FR 7254, codified at 40 CFR part 49. As a general matter, EPA determined in the TAR that it is not appropriate to treat Indian tribes in a similar manner as states for purposes of specific CAA program submittal and implementation deadlines. This is because, among other reasons (discussed at 59 FR at 43,964-65), although the CAA contains many provisions mandating the submittal of state plans, programs, or other requirements by certain dates, the Act does not similarly require Indian tribes to develop and seek approval of CAA programs.
        Thus, Indian tribes are generally not subject to CAA provisions that specify a deadline by which something must be accomplished, e.g., provisions mandating the submission of state Title V operating permits programs under sections 502(d)(1), 502(d)(2)(B), and 502(d)(3)of the Act. 40 CFR 49.4.
        A tribe that meets the eligibility criteria for treatment in a similar manner as a state (TAS) may, however, choose to implement a CAA program. A tribe may also submit reasonably severable portions of a CAA program, if it can demonstrate that its proposed air program is not integrally related to program elements not included in the plan submittal and is consistent with applicable statutory and regulatory requirements. 40 CFR 49.7(c); see also CAA section 110(o). This modular approach is intended to give Indian tribes the flexibility to address their most pressing air quality issues and acknowledges that Indian tribes often have limited resources with which to address their environmental concerns. Consistent with the exceptions listed in 40 CFR 49.4, once submitted, an Indian 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 similar state submittal. 40 CFR 49.9(h).

        EPA expects Indian tribes to fully implement and enforce their approved CAA programs and, as with states, EPA retains its authority to impose sanctions for failure to implement an approved air program. See 59 FR 43,956 at 43,965 (Aug. 25, 1994) (explaining EPA's rationale for treating Indian tribes in a similar fashion as states for purposes of mandatory sanctions for failure to adequately implement an approved part D program (CAA 179(a)(4)) and with respect to EPA's discretionary authority to impose sanctions (CAA 110(m)); 40 CFR 49.3.

        The CAA allows Indian tribes to develop and submit Title V operating permit programs to EPA at their own discretion. The EPA's Title V operating permit program review occurs pursuant to section 502 of the Act and the part 70 regulations, which together outline criteria for interim approval, full approval or disapproval. The Tribe has requested such approval and this action is in response to that request.
        III. Evaluation of the Tribe's Authorities
        The EPA completed a review of the Tribe's current and pending authority to regulate air pollution sources located within the exterior boundaries of the Reservation. Under section 301(d) of the CAA and the TAR, EPA may treat a tribe in a similar manner as a state for purposes of administering certain CAA programs or grants if the tribe demonstrates that: (1) It is a federally-recognized tribe; (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 exterior boundaries of the reservation (or in other areas under the tribe's jurisdiction); and (4) it can reasonably be expected to be capable, in EPA's judgment, of carrying out the functions for which it seeks approval, consistent with the CAA and applicable regulations. The sections below outline the details of EPA's review of the Tribe's authorities.
        A. Current Tribal Authority
        In July 1998 the Southern Ute Indian Tribe applied for TAS seeking approval to administer a CAA Title V air quality operating permit program throughout the Reservation. The State of Colorado challenged the Tribe's CAA TAS application, asserting that the Act of May 21, 1984, Public Law 98-290, 25 U.S.C. 668, which defined the boundaries of the Reservation, established the State's jurisdiction to regulate non-Indian-owned air pollution sources located on fee lands within the Reservation. The Tribe and the State, while continuing to disagree over who has jurisdiction over these sources, formed the Southern Ute Indian Tribe/State of Colorado Environmental Commission (Commission), and executed an intergovernmental agreement (IGA) on December 13, 1999, to establish a single air quality program applicable to all lands within the exterior boundaries of the Reservation.
        In general, the IGA allows for the Tribe to implement and administer CAA programs, on a Reservation-wide basis, through the joint Commission. It also provides that the State will support the Tribe's CAA TAS application as long as it is consistent with the IGA. Congress then passed the Southern Ute and Colorado Intergovernmental Agreement Implementation Act of 2004, Pub. L. No. 108-336 on October 18, 2004, which codifies the basic framework of the IGA, and authorizes EPA to grant TAS authority to the Tribe for air programs submitted under CAA section 301(d). The Tribe has previously received TAS approval on April 26, 2000, for the purposes of grant funding under CAA Section 105.
        On January 20, 2009, the Tribe submitted its CAA program TAS Application together with the Tribe's initial Title V Program. On July 14, 2009, EPA found the Tribe's CAA program TAS application to be administratively complete. This finding means the Tribe's CAA program TAS application satisfied the four necessary elements outlined above that the Tribe must demonstrate as part of the TAR. EPA will continue to review the Tribe's TAS application per 40 CFR 49.9(b). At the conclusion of this comment period, the Region will make a determination on the Tribe's CAA program TAS application prior to the final rulemaking for the Tribe's Title V Program.
        B. Reasonably Severable Title V Program Elements
        As previously discussed in Section II above, the TAR allows for Indian tribes to seek approval of partial elements of CAA programs as long as those portions are determined to be reasonably severable elements. 40 CFR 49.7(c). For the purposes of the Tribe's Title V Program it has been determined that the Acid Rain Program at Title IV of the CAA is severable. At this time, there are no Acid Rain emission sources located within the exterior boundaries of the Reservation, nor are there any pending applications for sources. In addition, it has been determined that underlying federal regulations at CAA sections 111 (Standards of Performance for New Stationary Sources) and 112 (National Emissions Standards for Hazardous Air Pollutants) are also reasonably severable. However, the Tribe has committed in a letter to EPA to incorporate by reference these standards and requirements into the Reservations Air Code and pursue authorization from EPA for those CAA programs. These delegations are not part of this action and will occur at a later date.
        C. Criminal Enforcement Memorandum of Understanding

        The TAR provides for a federal role in criminal enforcement of a tribal program when the CAA or its implementing regulations mandate criminal enforcement authority and the applicant tribe is precluded from exercising such authority. 40 CFR 49.7(a)(6) and 49.8. In these circumstances, the TAR allows EPA to approve a tribal application if the tribe enters into a Memorandum of Agreement with EPA that provides for the Federal government to exercise primary criminal enforcement responsibility. Id. These provisions of the TAR recognize that federal law places certain limitations on tribal criminal jurisdiction and sanctions. The IGA reached between the Tribe and the State of Colorado contemplates that EPA will exercise criminal enforcement within the Reservation boundary for air pollution violations.
        On February 10, 2009, the Tribe and EPA entered into a Memorandum of Agreement (MOA) which provides a procedure by which the Tribe will supply potential investigative leads to the federal government in an appropriate and timely manner when the Tribe is precluded from asserting criminal enforcement authority.
        IV. Evaluation of the Tribe's Title V Program Elements

        EPA conducted a thorough review of the Tribe's Title V Program according to 40 CFR 70.4(b) Elements of the initial program submission. It was critical that the Tribe's Title V Program address each of the 16 elements outlined in 40 CFR 70.4(b). Upon review, EPA concluded that the 16 elements found at 40 CFR 70.4(b) were addressed by the Tribe's Title V Program.
        A. Analysis of the Tribe's Title V Program Submission per 40 CFR 70.4(b)
        1. Complete Title V Program Description
        The Southern Ute Indian Tribe submitted an initial and a supplemental Title V Program to EPA on January 20, 2009 and September 28, 2010 respectively. The Title V Program submittals include a legal opinion from the Tribe's legal counsel stating that the laws of the Tribe and Southern Ute Indian Tribe/State of Colorado Environmental Commission provide adequate legal authority to carry out all aspects of the Title V Program, and a description of how the Tribe intends to implement the Title V Program.

        EPA comments noting deficiencies in the Tribe's initial January 20, 2009 Title V Program submittal were sent to the Tribe in a letter dated December 23, 2009. The deficiencies were segregated into those that require corrective action prior to Title V Program approval, and those that, if addressed, would serve to strengthen the Title V Program, but were not necessary for approval.

        In the September 28, 2010 supplemental Title V Program application, the Tribe addressed the deficiencies that required corrective action prior to Title V Program approval as well as those that served to strengthen the Title V Program. EPA has reviewed these changes and has determined that they are adequate to allow for Title V Program interim approval pursuant to 40 CFR 70.4(a). Upon review of the Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, a few minor errors were discovered that do not impact the Tribe's ability to implement the Title V Program but must be addressed. The Title V Program meets the minimum requirements of 40 CFR 70.4(d).
        2. Regulations Comprising the Title V Program

        The Tribe's Title V Program, including the operating permit regulations (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 5, Reservation Air Code, Articles I and II), meets the requirements of 40 CFR 70.4(b)(2) including evidence of procedurally correct adoption of the Tribe's Reservation Air Code as well as public notice and comments on its adoption. Additionally, the Tribe's Title V Program satisfies the requirements outlined in 40 CFR 70.2 and 70.3 with respect to applicability; 40 CFR 70.4, 70.5, and 70.6 with respect to permit content including operational flexibility; 40 CFR 70.5 with respect to complete application forms and criteria which define insignificant activities; 40 CFR 70.7 with respect to public participation and minor permit modifications; 40 CFR 70.8 with respect to permit review by EPA and affected states; 40 CFR 70.9 with respect to demonstrating adequate fees will be collected to cover the Title V Program costs; 40 CFR 70.10 with respect to federal oversight and sanctions; and 40 CFR 70.11 with respect to requirements for enforcement authority.
        3. Legal Opinion

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(3). The Tribe's Independent Legal Counsel, Maynes, Bradford, Shipps & Sheftel, LLP Attorneys at Law, submitted an initial and a supplemental legal opinion in both the initial and supplemental Title V Program applications (Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated January 14, 2009 and Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010). The signature of the Tribe's legal counsel, Sam Maynes of Maynes, Bradford, Shipps & Sheftel, LLP Attorneys at Law, has full authority to independently represent the Tribe in court on all matters pertaining to the Tribe's Title V Program. The legal opinion includes a demonstration of adequate legal authority to carry out the requirements of this part, including authority to carry out those activities listed at 40 CFR 70.4(b)(3)(i) through (xiii).
        4. Relevant Title V Program Documentation

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(4). The Tribe submitted extensive application forms (Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated January 14, 2009, Tab 4, Program Forms) for review as well as comprehensive instructions for each form.
        5. Compliance Tracking

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(5). The Tribe submitted multiple compliance assurance procedures and guidelines (Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated January 14, 2009, Tab 5, Compliance Tracking).
        6. Application Completeness Determination

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(6). The Tribe's Reservation Air Code (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 5, Reservation Air Code) Article II, Sections 2-106(3) and 2-107(1)(a) demonstrates adequate authority and procedures to determine within 60 days of receipt whether applications (including renewal applications) are complete, to request such other information as needed to process the application, and to take final action on complete applications within 18 months of the date of its submittal, except for initial permit applications, for which the part 70 permitting authority may take up to 3 years from the effective date of the Title V Program to take final action on the application, as provided for in 40 CFR 70.4(b)(11)(ii).
        7. Fee Demonstration

        The Tribe's Title V Program included a fee accounting including projected fee collection and programmatic costs (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 11, Revised Fee Demonstration, Figure 1 page 8 and Table 2 page 9) that set fees above the presumptive minimum set forth in 40 CFR 70.9. Specific fee provisions included $50.00 + CPI (Consumer Price Index) for all fee pollutants released in a calendar year pursuant to the Reservation Air Code (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 5, Reservation Air Code), Article II, Section 2-119. The Tribe's Title V Program clearly demonstrates a fee schedule that results in the collection and retention of revenues sufficient to cover the Title V Program costs. In addition, the fee schedule contains an initial accounting of how required fee revenues are sufficient to cover Title V Program costs.
        8. Statement of Adequate Personnel

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(8). The Tribe submitted a statement that adequate personnel and funding have been made available to develop, administer, and enforce the Title V Program (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 10, 40 CFR 70.4(b)(8)). In addition, the Tribe has provided a supplemental staffing plan (January 4, 2011 email from Brenda Jarrell) that outlines a staff of six individuals including a senior level engineering position.
        9. Submission Commitment

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(9). The Tribe submitted a commitment (Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated January 14, 2009, Tab 9, 40 CFR 70.4(b)(9)) to submit, at least annually to the Administrator, information regarding the Tribe's enforcement activities including, but not limited to, the number of civil, judicial and administrative enforcement actions either commenced or concluded; the penalties, fines, and sentences obtained in those actions; and the number of administrative orders issued.
        10. Failure To Issue Permit in a Timely Manner

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(10). The Tribe's Reservation Air Code (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 5, Reservation Air Code) Article II, Sections 2-106 and 2-107 are consistent with requirements outlined in 40 CFR 70.5(a)(2) and 70.6(f).
        11. Transition Plan

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(11). The Tribe submitted a comprehensive Revised Transition Plan (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 12, Revised Transition Plan) which outlines a plan and schedule for submittal and final action on initial permit applications for all part 70 sources within the exterior boundaries of the Reservation.
        12. Off Permit Changes

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(12). The Tribe's Reservation Air Code (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 5, Reservation Air Code) Article II, Sections 2-110, 2-111 and 2-116 are provisions allowing for changes within a permitted facility without requiring a permit revision, if the changes are not modifications under any provision of title I of the Act and the changes do not exceed the emissions allowable under the Part 70 permit, provided the facility provides written notification as required in 40 CFR 70.4(b)(12).
        13. Expeditious Permit Revisions and/or Modifications Review

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(13). The Tribe's Reservation Air Code (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 5, Reservation Air Code) Article II, Section 2-111 provides for adequate, streamlined and reasonable procedures for expedited review of permit revisions or modifications.
        14. Tribe Only Revisions
        The Tribe's Title V Program does not allow changes that are not addressed or prohibited as described in 40 CFR 70.4(b)(14). Thus, this section does not apply to the Tribe's Title V Program.
        15. Permit Changes Subject to Title I and IV of the Act

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(15). The Tribe's Reservation Air Code (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 5, Reservation Air Code) Article II, Section 2-116(2) prohibits sources from making, without a permit revision, changes that are not addressed or prohibited by the part 70 permit, if such changes are subject to any requirements under title IV of the Act or are modifications under any provision of title I of the Act.
        16. Permit Content and Permit Issuance, Renewal, Re-Openings and Revisions

        The Tribe's Title V Program meets the requirements of 40 CFR 70.4(b)(16). The Tribe's Reservation Air Code (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 5, Reservation Air Code) Article II, Sections 2-107, 2-110 and 2-112 requires the Tribe's Title V Program to implement the requirements of 40 CFR 70.6 and 70.7.
        B. Options for Approval/Disapproval and Implications

        The EPA is proposing to grant interim approval to the Tribe's Title V Program. The Tribe must make the following changes to the Reservation Air Code (Supplement to Application for Approval of the Southern Ute Indian Tribe's 40 CFR Part 70 Operating Permit Program dated September 28, 2010, Tab 5, Reservation Air Code) in order to receive full Title V Program approval.
        (1) Modify the “Emission unit” definition to include pollutants listed under 112(b) of the Act; and

        (2) Modify the “Major source” definition to include the updated definition for purposes of regulating greenhouses gasses as part of the Prevention of Significant Deterioration/Title V Greenhouse Gas Tailoring Rule (GHG Tailoring Rule). See 75 FR 106 at 31514-31608 (June 3, 2010); and
        The correction to the “Emission unit” definition is intended to clarify and make the Tribe's program consistent. The Tribe has the authority to regulate pollutants listed under 112(b) of the Act through their “Major source” and “Regulated air pollutant” definitions. Accordingly, the “Emission Unit” definition should include 112(b) pollutants to have consistent definitions in the Title V Program.
        The correction to the “Major source” definition is intended to narrow the sources that will require Title V review for greenhouse gasses (GHGs) after July 1, 2011. With this modification, the Tribe is afforded flexibility to issue Title V operating permits to sources with GHG emissions in a manner consistent with the Federal regulations as set out in the GHG Tailoring Rule.
        This proposed interim approval, which may not be renewed, would extend for a period of up to two years. Permits issued under a Title V operating permits program with interim approval have full standing with respect to part 70, and the one year time period for submittal of permit applications by subject sources begins upon interim approval, as does the three-year time period for processing the initial permit applications.
        The Tribe shall submit to EPA changes to the Title V Program addressing the deficiencies specified in the interim approval no later than 8 months prior to the expiration of the interim approval. 40 CFR 70.4(f)(2). The EPA can disapprove the Tribe's Title V Program if the specified changes are not made within the specified timeframe.
        V. What action is EPA taking?
        EPA is providing an opportunity for public comment on our intent to grant interim approval to the Southern Ute Indian Tribe's Title V Program.
        VI. Statutory and Executive Order Reviews
        Today's action merely proposes EPA's intent to grant interim approval to the Tribe's Title V Program and does not impose additional requirements beyond those imposed by tribal law. For that reason, this action:
        • Does ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications” as required in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000).
        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

        • 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).

          Dated: March 2, 2011.
          Carol Rushin,
          Acting Regional Administrator, Region 8.

      [FR Doc. 2011-5342 Filed 3-8-11; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        [Docket No. NHTSA-2019-0009]
        RIN 2127-AM10
        Federal Motor Vehicle Safety Standards; Electric-Powered Vehicles: Electrolyte Spillage and Electrical Shock Protection

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

          ACTION:
          Notice of proposed rulemaking (NPRM).

          SUMMARY:
          This document proposes to amend Federal Motor Vehicle Safety Standard (FMVSS) No. 305, “Electric-powered vehicles: Electrolyte spillage and electrical shock protection,” to clarify the direct contact protection requirements that apply to high voltage connectors, and to explicitly permit the use of high voltage connectors that cannot be separated without the use of tools. The proposed changes to these requirements would harmonize FMVSS No. 305 with Global Technical Regulations (GTRs) No. 13 and No. 20, which explicitly permit such connectors. In addition, it would make three minor technical corrections to the standard.

          DATES:
          Comments must be received on or before March 15, 2019.

          ADDRESSES:
          You may submit comments identified by the docket number in the heading of this document or by any of the following methods:
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments on the electronic docket site by clicking on “Help” or “FAQ.”
          • Mail: Docket Management Facility. M-30, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590.
          • Hand Delivery: U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590 between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except Federal Holidays.
          • Fax: 202-493-2251.
          Regardless of how you submit comments, you must include the docket number identified in the heading of this notice.
          You may call the Docket Management Facility at 202-366-9826.

            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 www.regulations.gov, including any personal information provided.

            Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its decision-making process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.transportation.gov/privacy. In order to facilitate comment tracking and response, we encourage commenters to provide their name, or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely comments will be fully considered.

            Docket: For access to the docket to read background documents or comments received, go to 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. Shashi Kuppa, Office of Crashworthiness Standards; telephone: 202-366-3827; facsimile: 202-493-2990. For legal issues, you may contact Mr. Daniel Koblenz, Office of Chief Counsel; telephone: 202-366-2992; facsimile: 202-366-3820. The mailing address of these officials is: National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.

        SUPPLEMENTARY INFORMATION:
        Table of Contents

          I. Introduction
          II. Background
          III. Proposal
          IV. Technical Corrections
          V. Effective Date and Comment Period
          VI. Rulemaking Analyses and Notices
          VII. Public Participation

        I. Introduction

        This document proposes to amend FMVSS No. 305, paragraph S5.4.1.5, to clarify that the three compliance options listed in S5.4.1.5(a), (b) and (c) only pertain to connectors that can be separated without the use of a tool. This proposal would make clear that S5.4.1.5(a), (b) and (c) do not apply to high voltage connectors that require the use of a tool to separate from their mating component and that meet S5.4.1.4's IPXXD or IPXXB requirements 1
           when the connector is connected to its mating component. NHTSA believes that connectors that require the use of a tool to separate from their mating component provide a level of direct contact protection that is equivalent to that provided by connectors already allowed under the standard. NHTSA believes that this proposed amendment will provide additional design flexibility to manufacturers of electric and fuel cell vehicles, thus facilitating the manufacture of such vehicles.

            1 Protection degree IPXXD is protection from contact with high voltage live parts. It is tested by probing electrical protection barriers with the test wire probe, IPXXD, shown in Figure 7a of FMVSS No. 305. Protection degree IPXXB is protection from contact with high voltage live parts. It is tested by probing electrical protection barriers with the jointed test finger probe, IPXXB, shown in Figure 7b of FMVSS No. 305.

        The changes proposed in this document would amend regulatory requirements that were established in the agency's September 27, 2017 final rule (82 FR 44945), which added several new requirements to improve electric vehicle safety. The final rule also sought to harmonize FMVSS No. 305 with the electrical safety requirements of GTR No. 13, “Hydrogen and fuel cell vehicles,” and a then-pending GTR No. 20, “Electric vehicle safety.” 2
           (NHTSA voted in favor of establishing GTR No. 20 in March 2018.) This NPRM proposes to better harmonize FMVSS No. 305 with GTRs No. 13 and No. 20, which allow for the use of connectors that require the use of a tool to separate. NHTSA seeks to issue a final rule based on today's NPRM as soon as possible, in light of the September 27, 2017 final rule's compliance date of September 27, 2018.

            2 GTRs are model standards that are developed through collaboration between contracting parties to the 1998 Agreement concerning the Establishing of Global Technical Regulations for Wheeled Vehicles, Equipment and Parts which can be fitted and/or be used on Wheeled Vehicles (the “1998 Agreement”). As a contracting party to the 1998 Agreement, the United States, through NHTSA, worked closely with experts from other contracting parties to develop GTR No. 13 and GTR No. 20.

        II. Background
        FMVSS No. 305 establishes requirements to reduce deaths and injuries during and after a crash that occur because of electrolyte spillage from electric energy storage devices, intrusion of electric energy storage/conversion devices into the occupant compartment, and electric shock. On September 27, 2017, NHTSA published a final rule amending FMVSS No. 305 by, among other things, adopting several electrical safety requirements found in GTR No. 13 (and later, GTR No. 20). 82 FR 44945. The GTR provisions adopted in the final rule included general requirements for protecting humans against direct contact with high-voltage live parts (FMVSS No. 305, S5.4.1.4), as well as specific direct contact protection requirements for high-voltage connectors (FMVSS No. 305, S5.4.1.5).3
           (The reason for specialized direct contact protection requirements for high voltage connectors is that, unlike other high voltage equipment, connectors are designed to separate from a mating component, which could potentially expose high voltage conductive parts to human contact.)

            3 FMVSS No. 305 defines a “connector” as “a device providing a mechanical connection and disconnection of high voltage electrical conductors to a suitable mating component, including its housing.”

        S5.4.1.4 requires that all high voltage sources, including high-voltage connectors, meet protection degree IPXXD or IPXXB (as appropriate) during normal vehicle operation. In addition, S5.4.1.5 requires that high voltage connectors must meet at least one of the following three compliance options to provide protection when separated: (a) The connector meets protection degree IPXXD/IPXXB when separated from its mating component, if the connector can be separated without the use of tools; (b) the voltage of the live parts becomes less than or equal to 60 volts of direct current (VDC) or 30 volts of alternating current expressed using the root mean square value (VAC) within one second after the connector is separated from its mating component; or (c) the connector is provided with a locking mechanism 4
           and there are other components that must be removed in order to separate the connector from its mating component and these other components cannot be removed without the use of tools.

            4 A locking mechanism requires at least two distinct actions to separate the connector from its mating component and is intended to prevent inadvertent disconnection of the connector from its mating component.

        NHTSA had intended for these provisions to harmonize the direct contact requirements for high voltage connectors in FMVSS No. 305 with those in GTRs No. 13 and No. 20 (which explicitly permit the use of connectors that require the use of a tool to separate).5 6
           However, following its issuance of the final rule, the agency received petitions for reconsideration from the Alliance of Automobile Manufacturers and Global Automakers, which argued in part that the regulatory text adopted in the final rule did not appear to permit use of connectors that require the use of a tool to separate. For this reason, the petitions requested that NHTSA amend S5.4.1.5 to provide a compliance option for high voltage connectors that meet IPXXD/IPXXB protection degree when connected, and that require the use of a tool to separate.

            5 See September 27, 2017 final rule (82 FR at 44953) (Stating that the direct contact requirements for connectors “are harmonized with GTR No. 13, ECE R100, and the draft EVS-GTR for electric vehicles.”).

            6 See GTR No. 13, 5.3.1.2.2, Protection against direct contact. https://www.unece.org/fileadmin/DAM/trans/main/wp29/wp29wgs/wp29gen/wp29registry/ECE-TRANS-180a13e.pdf.

        NHTSA agrees with the petitioners that, although the agency had intended to permit connectors that require the use of a tool to separate, that intent is not clear in the current regulatory text. In addition, NHTSA believes that the current wording of S5.4.1.5 does not make clear whether the provision would permit a connector that requires the use of a tool to separate when the connector does not have the “other components” mentioned in S5.4.1.5(c). The absence of a compliance option that allows high voltage connectors that require the use of a tool to separate burdens vehicle manufacturers because it is a common method of providing direct contact protection for connectors. NHTSA proposes to amend S5.4.1.5 to make clear that connectors that require the use of a tool to separate are permitted.
        The agency notes that, although these issues are within the scope of the September 27, 2017 final rule and could have been addressed in a response to the petitions for reconsideration, the agency would like to seek public comment on its proposed changes to the regulatory text. NHTSA believes public comments would be beneficial in ensuring that the changes proposed achieve their intended purpose of harmonizing FMVSS No. 305 with GTRs No. 13 and No. 20.
        III. Proposal

        NHTSA proposes to amend S5.4.1.5 to clarify that connectors are only required to meet one of the three listed compliance options if the connector can be separated without the use of a tool. NHTSA believes this change will harmonize that provision in FMVSS No. 305 with GTRs No. 13 and No. 20, as the agency had intended in its September 27, 2017 final rule. Moreover, NHTSA believes that this change will provide additional design flexibility to manufacturers of electric vehicles and fuel cell vehicles without compromising safety.
        This change will harmonize FMVSS No. 305 with GTRs No. 13 and No. 20 because it will clarify that high voltage connectors that require the use of a tool to separate meet requirements for direct contact protection. As noted above, NHTSA had intended to provide the same level of direct contact protection as GTRs No. 13 and No. 20, which explicitly permit such connectors. Because FMVSS No. 305 currently does not appear to permit high voltage connectors that require the use of a tool to separate, adopting the proposed changes would bring FMVSS No. 305 in line with GTRs No. 13 and No. 20.
        The proposed change will not affect electric vehicle safety because a connector that requires the use of a tool to separate will not inadvertently separate due to vehicle jostling or human error. Thus, it eliminates the possibility that a person is inadvertently exposed to a risk of electric shock. NHTSA notes that connectors requiring the use of a tool to separate provide essentially the same level of electrical shock protection as connectors that are currently permitted under provision (c) of S5.4.1.5. That provision currently permits connectors that cannot be accessed without removing surrounding components that themselves require the use of a tool to remove. Connectors under S5.4.1.5(c) provide the same level of protection as connectors that require the use of a tool to separate because both cannot be separated without a person intentionally using a tool to accomplish connector separation, which effectively eliminates the risk of accidental shock. Thus, NHTSA believes that requiring a connector that cannot be separated without the use of a tool to also meet one of the three existing compliance options in S5.4.1.5 is unwarranted.
        IV. Technical Corrections
        NHTSA is also proposing to make several technical corrections to the language of FMVSS No. 305, which are described below.
        Definition of “High Voltage Live Part”
        NHTSA is proposing to add a definition for the term “high voltage live part” to the definitions section of FMVSS No. 305. The term would be defined as “a live part of a high voltage source.” NHTSA had intended to add this definition as part of the September 27, 2017 final rule, as indicated by the agency's statement that it will “adopt terms such as `high voltage live parts' . . . in place of proposed terms that were less clear.” 82 FR at 44948. In addition, the agency stated in Table 1 of the final rule that adding the term “high voltage live parts” to S4 will clarify the requirements of the final rule, such as the applicability of IPXXD protection requirements. The agency will add this missing definition as a technical correction.
        Cross-Reference
        NHTSA is proposing to amend the cross-reference to the electrical isolation monitoring system requirement in S8 so that it is consistent with the reorganization of the FMVSS No. 305 that was done as part of the September 27, 2017 final rule. The final rule redesignated the electrical isolation monitoring system requirement from “S5.4” to “S5.4.4,” but did not make a conforming change to S8, which still refers to “S5.4.” The agency will change the S8 cross-reference to “S5.4.4” as a technical correction.
        Corrected Term

        NHTSA is proposing to correct the use of incorrect terminology in the description of the requirements for a resistance tester in S9.2(a). Currently, that provision states that “resistance is measured using a resistance tester that can measure current levels of at least 0.2 Amperes.” (Emphasis added.) The term “measure” should be “supply.” 7
           Accordingly, the agency will replace “measure” with “supply” in S9.2(a) as a technical correction.

            7 A resistance tester does not “measure” current in a circuit; it supplies current to a circuit which allows the tester to measure that circuit's level of electrical resistance.

        V. Effective Date and Comment Period

        NHTSA proposes that the final rule that follows this NPRM will have an immediate effective date upon publication of the final rule in the Federal Register.
        The Safety Act states that an amendment to a safety standard may not take effect earlier than 180 days after the standard is prescribed, or later than one year after the standard is prescribed unless, for good cause shown, a different effective date would be in the public interest. 49 U.S.C. 30111(d). NHTSA has tentatively concluded that good cause exists for this rule to become effective immediately, because the rule would not impose new substantive requirements that would burden vehicle manufacturers, and in fact would relieve an existing restriction. Similarly, the Administrative Procedure Act (APA) states that a rule cannot be made effective less than 30 days after publication, unless the rule falls under one of three enumerated exceptions. One of these exceptions is for a rule that “grants or recognizes an exemption or relieves a restriction.” 5 U.S.C. 553(d)(1). This rule would fall under this exception because it would relieve the existing restriction that prohibits the use of high voltage connectors that cannot be separated without the use of tools. NHTSA seeks comment on its tentative conclusion that good cause exists to justify an immediate effective date for a final rule based on this proposal.
        DOT Order 2100.5 requires that NHTSA provide a public comment period of at least 45 days for non-significant regulations, but may provide a shorter comment period if the proposed regulation is accompanied by a brief statement of reasons. NHTSA is providing a shortened 15-day comment period principally for two reasons. First, the September 27, 2017 final rule's effective date was September 27, 2018. The proposed amendments provide flexibility to manufacturers in meeting the final rule's requirements, so NHTSA would like to issue a final rule based on this NPRM as soon as possible. Second, the proposed changes are merely corrective and clarifying in nature, and a review of them by the public can be done quickly.
        VI. Rulemaking Analyses and Notices
        Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

        We have considered the potential impact of this proposed rule under Executive Order (E.O.) 12866, E.O. 13563, and the Department of Transportation's regulatory policies and procedures and have determined that today's proposed rule is nonsignificant. This rulemaking document was not reviewed by the Office of Management and Budget (OMB) under E.O. 12866. It is not considered to be significant under E.O. 12866 or the Department of Transportation's Regulatory Policies and Procedures. The amendments proposed by this NPRM mostly clarify or correct text adopted by a September 27, 2017 final rule and will have no significant effect on the national economy. This NPRM would clarify the direct contact protection requirements that apply to high voltage connectors, and to explicitly permit the use of high voltage connectors that cannot be separated without the use of tools.

        As noted above, NHTSA is providing a 15-day comment period for two principal reasons. First, the September 27, 2017 final rule's effective date is September 27, 2018. The proposed amendments provide flexibility to manufacturers in meeting the final rule's requirements, so NHTSA would like to issue a final rule based on this NPRM as soon as possible. Second, the proposed changes are merely corrective and clarifying in nature, and a review of them by the public can be done quickly.
        Executive Order 13771
        This proposed rule is E.O. 13771 titled “Reducing Regulation and Controlling Regulatory Costs,” directs that, unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed. In addition, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs. Only those rules deemed significant under section 3(f) of E.O. 12866, “Regulatory Planning and Review,” are subject to these requirements. This proposed rule is not expected to be an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866.
        Executive Order 13609: Promoting International Regulatory Cooperation
        The policy statement in section 1 of E.O. 13609 provides that unnecessary differences in regulatory approaches between U.S. agencies and their foreign counterparts can negatively affect the international competitiveness of U.S. businesses. Accordingly, U.S. agencies should, where possible, engage with these foreign counterparts to identify regulatory approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation.
        This rulemaking harmonizes FMVSS No. 305 with provisions that are in GTRs No. 13 and No. 20. Specifically, the primary clarification proposed by this document—that the use of connectors that cannot be separated without the use of tools is permissible under FMVSS No. 305—will bring FMVSS No. 305 into alignment with GTRs No. 13 and No. 20 requirements relating to high voltage connectors, and so will further the goals of E.O. 13609.
        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)(1)). No regulatory flexibility analysis is required if the head of an agency certifies the proposal 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 proposal will not have a significant economic impact on a substantial number of small entities.
        I hereby certify that this proposed rule would not have a significant economic impact on a substantial number of small entities. The amendments proposed by this NPRM mostly clarify or correct text adopted by a September 27, 2017 final rule. This proposed rule would make clear that connectors that cannot be separated without the use of a tool are permitted under FMVSS No. 305 without having to have present “other components” needing a tool to separate.
        This action would not impose any additional restrictions that would affect small entities, and in fact, would give greater design flexibility to manufacturers of electric vehicles and HFCVs.
        Executive Order 13132 (Federalism)
        NHTSA has examined today's proposed rule pursuant to E.O. 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. Today's proposed rule would not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
        NHTSA rules can have preemptive effect in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision stating that, if NHTSA has established a standard for an aspect motor vehicle or motor vehicle equipment performance a State may only prescribe or continue in effect a standard for that same aspect of performance if the State standard is identical to the Federal standard. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
        The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of State common law tort causes of action by virtue of NHTSA's rules—even if not expressly preempted.

        This second way that NHTSA rules can preempt is dependent upon the existence of an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer—notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
        Pursuant to E.O. 13132, NHTSA has considered whether this proposed rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.
        To this end, the agency has examined the nature (e.g., the language and structure of the regulatory text) and objectives of today's proposed rule and finds that this proposed rule, like many NHTSA rules, prescribes only a minimum safety standard. Accordingly, NHTSA does not intend that this proposed rule preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by today's proposal. Establishment of a higher standard by means of State tort law would not conflict with the minimum standard proposed in this document. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.
        Executive Order 12988 (Civil Justice Reform)
        When promulgating a regulation, E.O. 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 proposed rule is discussed above in connection with E.O. 13132. 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.
        Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks)
        E.O. 13045, “Protection of Children from Environmental Health and Safety Risks,” (62 FR 19885; April 23, 1997) applies to any proposed or final rule that: (1) Is determined to be “economically significant,” as defined in E.O. 12866, and (2) concerns an environmental health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If a rule meets both criteria, the agency must evaluate the environmental health or safety effects of the rule on children, and explain why the rule is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.
        This proposed rule is not subject to E.O. 13045 because it is not economically significant.
        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.
        Pursuant to the above requirements, the agency conducted a review of voluntary consensus standards to determine if any were applicable to this proposed rule. NHTSA searched for but did not find voluntary consensus standards directly applicable to the amendments proposed in this NPRM.
        However, consistent with the NTTAA, this proposal is aligned with regulations developed globally on electric vehicle safety, namely GTR No. 13 and GTR No. 20.8
           The GTRs permit the use of high voltage connectors that cannot be separated without the use of tools. We believe that the proposed amendment to FMVSS No. 305 would promote harmonization of our countries' regulatory approaches on electric vehicles and HFCVs.

            8 The NTTAA seeks to support efforts by the Federal government to ensure that agencies work with their regulatory counterparts in other countries to address common safety issues. Circular No. A-119, “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities,” January 27, 2016, p. 15.

        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). We note that as this proposed rule only makes minor adjustments and clarifications to FMVSS No. 305. Thus, it would not result in expenditures by any of the aforementioned entities of over $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 proposed rule imposes no new reporting requirements on manufacturers.
        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.
        VII. Public Participation
        How do I prepare and submit comments?
        • To ensure that your comments are correctly filed in the Docket, please include the Docket Number found in the heading of this document in your comments.
        • Your comments must not be more than 15 pages long.9
           NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments, and there is no limit on the length of the attachments.

            9 49 CFR 553.21.

        • If you are submitting comments electronically as a PDF (Adobe) file, NHTSA asks that the documents be submitted using the Optical Character Recognition (OCR) process, thus allowing NHTSA to search and copy certain portions of your submissions.

        • Please note that pursuant to the Data Quality Act, in order for substantive data to be relied on and used by NHTSA, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, NHTSA encourages you to consult the guidelines in preparing your comments. DOT's guidelines may be accessed at https://www.transportation.gov/regulations/dot-information-dissemination-quality-guidelines.

        Tips for Preparing Your Comments
        When submitting comments, please remember to:

        • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
        • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
        • Describe any assumptions you make and provide any technical information and/or data that you used.
        • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
        • Provide specific examples to illustrate your concerns, and suggest alternatives.
        • Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

        • To ensure that your comments are considered by the agency, make sure to submit them by the comment period deadline identified in the DATES section above.

        For additional guidance on submitting effective comments, visit: https://www.regulations.gov/docs/Tips_For_Submitting_Effective_Comments.pdf.

        How can I be sure that my comments were received?
        If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
        How do I submit confidential business information?

        If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit a copy, from which you have deleted the claimed confidential business information, to the docket at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512)
        Will the agency consider late comments?

        We will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that the docket receives after that date. If the docket receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.
        How can I read the comments submitted by other people?

        You may read the comments received by the docket at the address given above under ADDRESSES. The hours of the docket are indicated above in the same location. You may also see the comments on the internet. To read the comments on the internet, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets.

        Please note that even after the comment closing date, we will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material. You can arrange with the docket to be notified when others file comments in the docket. See www.regulations.gov for more information.

          List of Subjects in 49 CFR Part 571
          Imports, Motor vehicles, Motor vehicle safety.

        In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as follows:

          PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS

        1. The authority citation for part 571 continues to read as follows:

          Authority:
          49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95 and 501.8.

        2. Amend § 571.305 by:
        a. Adding, in alphabetical order, a definition for “High voltage live part” to paragraph S4;
        b. Revising paragraph S5.4.1.5;
        c. Revising the introductory text of paragraph S8; and
        d. Revising paragraph S9.2(a).
        The addition and revisions read as follows:

          § 571.305
          Standard No. 305; Electric-powered vehicles; electrolyte spillage and electrical shock protection.

          S4. Definitions.

            High voltage live part means a live part of a high voltage source.

          S5.4.1.5 Connectors. All connectors shall provide direct contact protection by:
          (a) Meeting the requirements specified in S5.4.1.4 when the connector is connected to its corresponding mating component; and,
          (b) If a connector can be separated from its mating component without the use of a tool, meeting at least one of the following conditions (1), (2), or (3):
          (1) The connector meets the requirements of S5.4.1.4 when separated from its mating component;
          (2) The voltage of the live parts becomes less than or equal to 60 VDC or 30 VAC within one second after the connector is separated from its mating component; or,
          (3) The connector requires at least two distinct actions to separate from its mating component and there are other components that must be removed in order to separate the connector from its mating component and these other components cannot be removed without the use of tools.

          S8. Test procedure for on-board electrical isolation monitoring system. Prior to any impact test, the requirements of S5.4.4 for the on-board electrical isolation monitoring system shall be tested using the following procedure.

          S9.2 * * *

          (a) Test method using a resistance tester. The resistance tester is connected to the measuring points (the electrical chassis and any exposed conductive part of electrical protection barriers or any two simultaneously reachable exposed conductive parts of electrical protection barriers that are less than 2.5 meters from each other), and the resistance is measured using a resistance tester that can supply current levels of at least 0.2 Amperes with a resolution of 0.01 ohms or less. The resistance between two exposed conductive parts of electrical protection barriers that are less than 2.5 meters from each other may be calculated using the separately measured resistances of the relevant parts of the electric path.

          Issued in Washington, DC, under authority delegated in 49 CFR 1.95 and 501.8.
          Raymond R. Posten,
          Associate Administrator for Rulemaking.

      [FR Doc. 2019-03181 Filed 2-27-19; 8:45 am]
       BILLING CODE 4910-59-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 180212159-8159-01]
        RIN 0648-BH75
        Atlantic Highly Migratory Species; Shortfin Mako Shark Management Measures; Proposed Amendment 11; Comment Period Extension

          AGENCY:

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

          ACTION:
          Proposed rule; extension of comment period.

          SUMMARY:
          NMFS previously published, on July 27, 2018, a proposed rule to amend the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) based on the results of the 2017 stock assessment and a subsequent binding recommendation by the International Commission for the Conservation of Atlantic Tunas (ICCAT) for North Atlantic shortfin mako sharks. The comment period on the proposed rule ends on October 1, 2018. In this extension of comment period, NMFS is extending the comment period to October 8, 2018, to provide an opportunity for the South Atlantic Fishery Management Council (Council) to be briefed, and to provide additional opportunities for the Council and other interested parties to comment on the proposed rule.

          DATES:
          The deadline for receipt of comments on the proposed rule published on July 27, 2018 (83 FR 35637) is extended from October 1, 2018 to October 8, 2018.

          ADDRESSES:
          You may submit comments on the referenced proposed rule published on July 27, 2018 (83 FR 35637), identified by NOAA-NMFS-2018-0011, by any one of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2018-0011, click the “Comment Now” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Guý DuBeck, NMFS/SF1, 1315 East-West Highway, National Marine Fisheries Service, SSMC3, Silver Spring, MD 20910.

            Instructions: Please include the identifier NOAA-NMFS-2018-0011 when submitting comments. Comments sent by any other method, to any other address or individual, or received after the close of the comment period, may not be considered by NMFS. All comments received are a part of the public record and generally will be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          FOR FURTHER INFORMATION CONTACT:
          Guý DuBeck or Karyl Brewster-Geisz at (301) 427-8503.

        SUPPLEMENTARY INFORMATION:
        The North Atlantic shortfin mako stock is managed primarily under the authority of the Magnuson-Stevens Act and also under the Atlantic Tunas Convention Act (ATCA). The 2006 Consolidated HMS FMP and its amendments are implemented by regulations at 50 CFR part 635.
        On July 27, 2018 (83 FR 35637), NMFS published a proposed rule that announced NMFS' intent to amend the 2006 Consolidated Atlantic HMS FMP based on the results of the 2017 stock assessment and a subsequent binding recommendation by the International Commission for the Conservation of Atlantic Tunas (ICCAT) for North Atlantic shortfin mako sharks. The North Atlantic shortfin mako shark stock is overfished and is experiencing overfishing. Consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act (ATCA), NMFS is proposing management measures that would reduce fishing mortality on shortfin mako sharks and establish a foundation for rebuilding the shortfin mako shark population consistent with legal requirements. In the proposed rule, the end of the comment period was announced as October 1, 2018. However, due to Hurricane Florence, the South Atlantic Fishery Management Council postponed its previously scheduled meeting by several weeks. Without an extension of the comment period, the Council would be unable to receive the same briefing provided to other Councils prior to providing comments on Amendment 11. As such, NMFS is extending the comment period to provide an opportunity to be briefed and an additional opportunity for the South Atlantic Fishery Management Council and other interested parties to comment on the proposed rule. Therefore, the comment period for the proposed rule is extended to October 8, 2018.

          Authority:
           16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

          Dated: September 17, 2018.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2018-20457 Filed 9-19-18; 8:45 am]
      BILLING CODE 3510-22-P


        AGENCY FOR INTERNATIONAL DEVELOPMENT
        48 CFR Chapter 7
        [Regulation Identifier Number (RIN) 0412-AA59]
        Key Subcontractor Consent Requirements

          AGENCY:
          United States Agency for International Development.

          ACTION:
          Advanced notice of proposed rulemaking.

          SUMMARY:
          The United States Agency for International Development is proposing to amend 48 CFR Chapter 7, the USAID Acquisition Regulation (AIDAR), by adding additional authority to monitor prime contractor compliance with subcontracting plans. The intent of this amendment is to provide the contracting officer a means for monitoring and assuring that subcontractors who were named in the offeror's proposal and whose contributions were evaluated as part of the proposal evaluation are in fact used in the contract.

          DATES:
          Submit comments on or before March 27, 2007.

          ADDRESSES:
          Submit comments, identified by title of the Proposed Action, and RIN number by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Fax: (202) 216-3395.
          • Mail: USAID, Office of Acquisition and Assistance, Policy Division, Room 7.9-18, 1300 Pennsylvania Avenue, NW., Washington, DC 20523-0001.

            Instructions: All submissions must include the title of the proposed action, and Regulatory Information Number (RIN) for this rulemaking. Please include your name, title, organization, postal address, telephone number, and e-mail address in the text of the message.

          FOR FURTHER INFORMATION CONTACT:

          Diane Howard, 202-712-0206  Telephone: (202) 712-0206, E-mail: dhoward@usaid.gov.

        SUPPLEMENTARY INFORMATION:
        The Agency envisions adding an authority to the AIDAR similar to that set out in the subcontracting consent requirements in the Federal Acquisition Regulation. Prime contractors will be required to obtain prior consent from the contracting officer in order to replace a named key subcontractor with another organization. Consent will also be required in the case where the prime contractor plans to carry out itself any contract requirements that were intended to be carried out by a named key subcontractor. The Agency is currently piloting this procedure in selected contracts.
        Our purpose in publishing this notice is to collect comments and opinions from the public prior to drafting regulatory guidance on this matter. In particular, we seek public comment on the challenges associated with enforcing such a modification. We are interested in assessments of the practicality of administering such a requirement and recommendations to assist the Agency in developing authority, guidelines, and standards to improve mission performance. USAID will issue a notice of proposed rulemaking following a review of comments received and review of pilot contracts.
        Public Participation: Because security screening precautions have slowed the delivery and dependability of surface mail to USAID/Washington, USAID recommends sending all comments to the Federal eRulemaking Portal or fax number listed above (all comments must be in writing to be reviewed). You may submit comments by electronic mail avoiding the use of any special characters and any form of encryption.

        All comments will be made available for public review without change, including any personal information provided, from 3 days after receipt to finalization of action at http://www.Regulations.gov.

          Michael F. Walsh,
          Procurement Executive.

      [FR Doc. E7-1255 Filed 1-25-07; 8:45 am]
      BILLING CODE 6116-01-P