[Federal Register: December 5, 2008 (Volume 73, Number 235)]
[Rules and Regulations]
[Page 74019-74027]
[DOCID:fr05de08-8]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2008-0194; A-1-FRL-8717-9]

Approval and Promulgation of Air Quality Implementation Plans;
Connecticut; Enhanced Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is approving a State Implementation Plan (SIP)
revision submitted on December 19, 2007 by the State of Connecticut.
This SIP revision includes regulations to update the enhanced motor
vehicle inspection and maintenance (I/M) program in Connecticut. The
revised program includes a test and repair network and on-board
diagnostic (OBD2) testing for 1996 and newer vehicles. The intended
effect of this action is to approve the

revised program into the Connecticut SIP. This action is being taken in
accordance with the Clean Air Act.

DATES: This direct final rule will be effective February 3, 2009,
unless EPA receives adverse comments by January 5, 2009. If adverse
comments are received, EPA will publish a timely withdrawal of the
direct final rule in the Federal Register informing the public that the
rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2008-0194 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2008-0194'',
Anne Arnold, U.S. Environmental Protection Agency, EPA New England
Regional Office, One Congress Street, Suite 1100 (mail code CAQ),
Boston, MA 02114-2023.
    5. Hand Delivery or Courier: Deliver your comments to: Anne Arnold,
Manager, Air Quality Planning Unit, Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
One Congress Street, 11th floor, (CAQ), Boston, MA 02114-2023. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 to 4:30, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2008-0194. 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 through http://
www.regulations.gov, or e-mail, information that you consider to be CBI
or otherwise protected. 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.
    Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://
www.regulations.gov or in hard copy at Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
One Congress Street, Suite 1100, 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 to
4:30, excluding legal holidays.
    In addition, copies of the state submittal and EPA's technical
support document are also available for public inspection during normal
business hours, by appointment at the State Air Agency; the Bureau of
Air Management, Department of Environmental Protection, State Office
Building, 79 Elm Street, Hartford, CT 06106-1630.

FOR FURTHER INFORMATION CONTACT: Robert C. Judge, Office of Ecosystem
Protection, EPA New England, One Congress Street, Suite 1100 (CAQ),
Boston, MA 02114-2023;<PHONE_NUMBER> (phone);<PHONE_NUMBER> (fax); e-mail
at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. The following outline is
provided to aid in locating information in this rulemaking.

I. Background and Purpose
II. What Are the Clean Air Act Requirements for I/M Programs?
III. What Are the OBD2 Requirements and How Does Connecticut's
Program Address Them?
IV. What Are All the Other I/M Regulatory Requirements and How Does
Connecticut's I/M Program Satisfy Them?
    A. Applicability
    B. Enhanced I/M Performance Standard
    C. Network Type and Program Evaluation
    D. Adequate Tools and Resources
    E. Test Frequency and Convenience
    F. Vehicle Coverage
    G. Test Procedures and Standards
    H. Test Equipment
    I. Quality Control
    J. Waivers and Compliance via Diagnostic Inspection
    K. Motorist Compliance Enforcement
    L. Motorist Compliance Enforcement Oversight
    M. Quality Assurance
    N. Enforcement Against Contractors, Stations, and Inspectors
    O. Data Analysis and Reporting
    P. Inspector Training and Licensing or Certification
    Q. Improving Repair Effectiveness
    R. Compliance With Recall Notices
    S. On-Road Testing
    T. Concluding Statement
V. Final Action
VI. Statutory and Executive Order Reviews

I. Background and Purpose

    On December 19, 2007, the State of Connecticut submitted a formal
revision to its State Implementation Plan (SIP). This SIP revision
includes regulations to update the enhanced motor vehicle inspection
and maintenance (I/M) program in Connecticut. EPA is approving
Connecticut's revised I/M program because it is consistent with the
Clean Air Act I/M requirements and EPA's I/M regulations, and will
strengthen the SIP. Please note that if EPA receives adverse comment on
an amendment, paragraph, or section of this rule and if that provision
may be severed from the remainder of the rule, EPA may adopt as final
those provisions of the rule that are not the subject of an adverse
comment.

II. What Are the Clean Air Act Requirements for I/M Programs?

    The Clean Air Act (CAA), 42 U.S.C. 7401, et seq., requires certain
states to implement an enhanced inspection and maintenance (I/M)
program to detect gasoline-fueled motor vehicles which emit excessive
amounts of certain air pollutants. The enhanced I/M program is intended
to help states meet federal health-based national ambient air quality
standards (NAAQS) for ozone and carbon monoxide by requiring vehicles
with excess emissions to have their emissions control systems repaired.
Section 182 of the CAA requires I/M programs in those areas of the
nation that are most impacted by carbon monoxide and ozone pollution.
42 U.S.C. 7411c. Section 184 of the CAA also created an ``Ozone
Transport Region'' (OTR) and includes I/M

requirements for that region. The OTR geographically includes the 11
states from Maryland to Maine (including all of Connecticut) and the
District of Columbia Consolidated Metropolitan Statistical Area. In
addition, EPA promulgated I/M regulations at 40 CFR Part 51 Subpart S.
Depending on the severity of an area's nonattainment designation and/or
geographic location within the OTR, EPA's regulation under 40 CFR
51.350 outlines the appropriate motor vehicle I/M requirements.
    As a result of its ozone nonattainment designation (see 40 CFR
81.307), and by virtue of its inclusion in the OTR, Connecticut has
implemented an enhanced vehicle emissions testing program throughout
the entire State. A vehicle testing program has been operating
statewide since 1983 in Connecticut. The Connecticut I/M program was
first approved into the SIP on May 21, 1984 (49 FR 10542) and the
program has since been revised several times. Most recently the SIP was
modified on October 27, 2000 (65 FR 64357). Since that time, the
program has been again modified in a number of ways. Most notably it
has been changed to a test and repair network, and now also includes
on-board diagnostic (ODB2) testing of 1996 and newer vehicles.

III. What Are the OBD2 Requirements and How Does Connecticut's Program
Address Them?

    On April 5, 2001, EPA published in the Federal Register
``Amendments to Vehicle Inspection and Maintenance Program Requirements
Incorporating the On-Board Diagnostics Check'' (66 FR 18156). The
revised I/M rule requires that electronic checks of the On-Board
Diagnostics (OBD2) system on model year 1996 and newer OBD2-equipped
motor vehicles be conducted as part of states' motor vehicle I/M
programs. OBD2 is part of the sophisticated vehicle powertrain
management system and is designed to detect engine and transmission
problems that might cause vehicle emissions to exceed allowable limits.
OBD2 requirements are a key part of this rulemaking action.
    The OBD2 system monitors the status of up to 11 emission control
related subsystems by performing either continuous or periodic
functional tests of specific components and vehicle conditions. The
first three testing categories--misfire, fuel trim, and comprehensive
components--are continuous, while the remaining eight only run after a
certain set of conditions has been met. The algorithms for running
these eight periodic monitors are unique to each manufacturer and
involve such things as ambient temperature as well as driving
conditions. Most vehicles will have at least five of the eight
remaining monitors (catalyst, evaporative system, oxygen sensor, heated
oxygen sensor, and exhaust gas recirculation or EGR system) while the
remaining three (air conditioning, secondary air, and heated catalyst)
are not necessarily applicable to all vehicles. When a vehicle is
scanned at an OBD2-I/M test site, these monitors can appear as either
``ready'' (meaning the monitor in question has been evaluated), ``not
ready'' (meaning the monitor has not yet been evaluated), or ``not
applicable'' (meaning the vehicle is not equipped with the component
monitor in question).
    The OBD2 system is also designed to fully evaluate the vehicle
emissions control system. If the OBD2 system detects a problem that may
cause vehicle emissions to exceed 1.5 times the Federal Test Procedure
(FTP) standards, then the Malfunction Indicator Light (MIL) is
illuminated. By turning on the MIL, the OBD2 system notifies the
vehicle operator that an emission-related fault has been detected, and
the vehicle should be repaired as soon as possible thus reducing the
harmful emissions contributed by that vehicle.
    EPA's revised OBD2 I/M rule applies to those areas that are
required to implement I/M programs under the CAA, which includes
Connecticut. The revised I/M program submitted by Connecticut on
December 19, 2007 includes OBD2 testing for 1996 and newer vehicles,
and continues to require that 1995 and older vehicles (up to 25 years
old) continue to receive the previously SIP approved acceleration
simulation mode (ASM) test or, if that test can not be implemented,
gasoline powered vehicles up to 10,000 pounds GVWR (gross vehicle
weight rating) are tested with a preconditioned two-speed idle test.
    EPA's OBD2 program requires scan tool equipment to read the
vehicle's built-in computer sensors in model year 1996 and newer
vehicles. The OBD2- I/M check consists of two types of examination: A
visual check of the dashboard display function and status and an
electronic examination of the OBD2 computer itself. The failure
criteria for OBD2 testing is any Diagnostic Trouble Code (DTC) or
combination of DTCs that results in the Malfunction Indicator Light
(MIL) to be commanded on. A DTC is a code that indicates an emission
control system or component which may cause emissions to increase to
1.5 times the limit due to malfunction. Connecticut has incorporated
this OBD2 component into its program.
    If the OBD2 scan reveals DTCs that have not commanded the MIL on,
the motorist should be advised of the issue, but the vehicle should not
be failed unless other non-DTC-based failure criteria have been met.
Vehicles may fail inspection if the vehicle connector is missing,
tampered with or otherwise inoperable, if the MIL is commanded on and
is not visually illuminated, and if the MIL is commanded on for 1 or
more DTCs as defined in Society of Automotive Engineering (SAE) J2012
guidance document, and EPA regulations.
    Vehicles are rejected from testing if the scan of the OBD2 system
reveals a ``not ready'' code for any OBD2 component. EPA guidance
allows states the flexibility to permit model year 1996 to 2000
vehicles with 2 or fewer unset readiness codes, and model year 2001 and
newer with 1 unset readiness code to complete OBD2-I/M inspection
without being rejected. Vehicles would still fail if the MIL was
commanded on or if other failure criteria were met, or be rejected if 3
or more unset readiness codes were encountered. If the MIL is not
commanded to be illuminated the vehicle would pass the OBD2 inspection
even if DTCs are present. Connecticut's testing program is consistent
with the EPA recommended readiness failure criteria. Connecticut's
program regulations, at section 22a-174-27(g) require that the program
meet all the relevant OBD2 testing ``requirements of 40 CFR 51 and 40
CFR 85 and shall include procedures set forth in 40 CFR 85.2222.''
    The EPA believes that for an OBD2-I/M test program to be most
effective, it should be designed to allow for: (1) Real-time data link
connections to a centralized testing database; (2) quality-controlled
input of vehicle and owner identification information; and (3)
automated generation of test reports. Connecticut has incorporated
these OBD2 program elements into its program.

IV. What Are All the Other I/M Regulatory Requirements and Does
Connecticut's I/M Program Satisfy Them?

A. Applicability

    The SIP describes in detail the areas subject to the enhanced I/M
SIP revision and, consistent with 40 CFR 51.372, includes the legal
authority necessary to establish program boundaries. The Connecticut I/
M regulations (``Emission standards and on-board diagnostic II test
requirements for periodic motor vehicle

inspection and maintenance'' at section 22a-174-27, and ``Periodic
Motor Vehicle Emissions Inspection and Maintenance'' at section 14-
164c-1a to Section 14-164c-18a) and authorizing legislation
(Connecticut Statutes at Chapter 246 and 246a) ensure that the enhanced
I/M program be implemented statewide.

B. Enhanced I/M Performance Standard

    Today's rulemaking discusses the I/M program designed, in part, to
meet the enhanced I/M performance standard for ozone precursors causing
air quality problems in Connecticut. EPA's performance standard
establishes an emission reduction target that must be met by a program
in order for the SIP to be approvable. The program, as documented in
the SIP, must meet the performance standard in actual operation, with
provisions for appropriate adjustments if the standard is not met.
    Included in Connecticut's December 19, 2007 submittal is the
appropriate MOBILE6 vehicle emission modeling demonstration considering
the required performance standards and the actual Connecticut program
as it is currently being implemented statewide, as well as a comparison
to the centralized program that the State is no longer implementing.
The modeling runs considered evaluations with 2005, 2007 and 2009
compliance dates. Connecticut has demonstrated that reductions from its
updated program are better than the pre-existing I/M program and the
EPA performance standard.
    The MOBILE6 modeling performed by Connecticut reflects the fact
that Connecticut tests all gasoline powered vehicles that are less than
25 years old. 1996 and newer vehicles are tested with OBD2, and pre-
1996 vehicles (i.e., they are not equipped with OBD2 technology) are
tested using the acceleration simulation mode (ASM 2525), or, if ASM
2525 is not feasible for that vehicle, those vehicles will receive a
preconditioned two-speed idle (PCTSI) test. Vehicles are tested every
other year, and vehicles up to 4 years old are not tested. Vehicle
testing requirements are included in section 22a-174-27, and details of
meeting the performance standard are included in section 2 of the SIP
narrative.

C. Network Type and Program Evaluation

    Under the CAA and EPA's I/M rule, the SIP must include a
description of the network to be employed and the required legal
authority. Also, for enhanced I/M areas, the SIP needs to include a
description of the evaluation schedule and protocol, the sampling
methodology, the data collection and analysis system, the resources and
personnel for evaluation and related details of the evaluation program,
as well as the legal authority establishing the evaluation program.
    Connecticut has revised its program to be a test and repair I/M
network program design utilizing contractors to manage and oversee the
inspection portion of the program. In its December 19, 2007 submittal,
Connecticut states, in its SIP revision narrative, that it will
institute a continuous ongoing evaluation program consistent with the
federal I/M rule. The results of the evaluation program will be
reported to EPA on a biennial basis (40 CFR 51.353). In addition,
Connecticut commits to developing and submitting the annual reports
described by 40 CFR 51.366. The State has sufficient legal authority to
implement this contractor managed program in concert with local
inspection stations and conduct the program evaluation, as necessary to
implement I/M consistent with federal requirements. (Connecticut laws
at Chapter 246a--Motor Vehicle Emissions, section 14-164c(e)) Details
of the network type and program evaluation are included in Section 3 of
the SIP narrative.

D. Adequate Tools and Resources

    Under the CAA and EPA's I/M rule, the SIP must include a
description of the resources that will be used for program operation
and must discuss how the performance standard will be met, including:
(1) A detailed budget plan describing the source of funds for
personnel, program administration, program enforcement, purchase of
necessary equipment (such as vehicles for undercover audits), and for
other requirements discussed throughout the I/M rule, for the period
prior to the next biennial self evaluation required by the federal I/M
rule, and (2) a description of personnel resources, the number of
personnel dedicated to overt and covert auditing, data analysis,
program administration, enforcement, and other necessary functions, and
the training attendant to each function.
    Connecticut legislation authorizes the State to collect a fee at
registration to cover the costs of administrating, overseeing, and
enforcing the I/M program. The December 19, 2007 submittal includes
additional detail on the funding and description of resources to be
used for implementation of the enhanced I/M program. This narrative at
Section 4, and its attachments describe the budget, staffing support,
and equipment needed to implement the program.

E. Test Frequency and Convenience

    Under EPA's I/M rule, the SIP must include a detailed test
schedule, including the test year selection scheme if testing is other
than annual. The SIP must also include the legal authority necessary to
implement and enforce the test frequency requirement and explain how
the test frequency will be integrated with the enforcement process. In
addition, in enhanced I/M programs, the SIP needs to demonstrate that
the network of stations providing testing services is sufficient to
ensure consumer convenience by providing short waiting times to get a
test, and short driving distances to get to the test center.
    The Connecticut SIP revision requires biennial inspections for all
subject motor vehicles that are at least four years old. The
inspections will be conducted based on when the vehicle is initially
registered. This is described in more detail in the December submittal.
The authority for enforcing the testing frequency is contained in the
revised Connecticut Department of Motor Vehicles' portion of the I/M
rule. Short waiting times and short driving distances relating to
network design are addressed by ensuring that local gas stations can
provide the inspection, and are described in section 5 of the SIP
narrative.

F. Vehicle Coverage

    Under EPA's I/M rule, the SIP must include a detailed description
of the number and types of vehicles to be covered by the program, and a
plan for identifying subject vehicles, including vehicles that are
routinely operated in the area but may not be registered in the area.
Also, the SIP must include a description of any special exemptions
which will be granted by the program, and an estimate of the percentage
and number of vehicles granted such exemptions. Such exemptions need to
be accounted for in the emission reduction analysis. In addition, the
SIP needs to include the legal authority necessary to implement and
enforce the vehicle coverage requirement.
    Connecticut's I/M program covers all gasoline and diesel vehicles,
light duty trucks, and heavy duty vehicles that are 25 years old and
newer and registered in the State. In addition, United States Postal
Service and United States GSA vehicles are also covered. Special
classes, which are exempt from the emission testing program, include
vehicles weighing more than 10,000 pounds (GVWR), electric vehicles,
farm

vehicles, motorcycles, and vehicles which are less than 4 years old.
Based on information provided by the State, Connecticut has shown that
such exemptions will not prevent the program from achieving the
performance standard. Additional detail supporting this conclusion was
included in Section 6 of the December 19, 2007 submittal. Legal
authority for the vehicle coverage requirement is contained in the
Connecticut Department of Environmental Protection (DEP) and Department
of Motor Vehicles (DMV) I/M rules and the State's authorizing
legislation. (Connecticut laws at Chapter 246a--Motor Vehicle
Emissions, Section 14-164c)

G. Test Procedures and Standards

    Under EPA's I/M rule, the SIP must include a description of each
test procedure used. The SIP also must include the rule, ordinance or
law describing and establishing the test procedures. The Connecticut I/
M SIP revision and associated regulations obligate the State to perform
OBD2 testing on all 1996 and newer vehicles, in accordance with EPA
procedures. All 1995 and older covered vehicles up to 8,500 pounds GVWR
(excluding full time four wheel drive) will be tested in accordance
with EPA procedures for the acceleration simulation mode, or ASM 2525.
A vehicle which can not be tested using either OBD2 or ASM 2525, or has
a GVWR greater than 8500 GVWR and less than 10,000 GVWR will be given a
pre-conditioned two-speed idle (PCTSI) test. Details of the test
procedures and standard are included in Section 7 of the SIP narrative,
and in the DEP rules at section 22a-174-27.

H. Test Equipment

    Under EPA's I/M rule, the SIP must include written technical
specifications for all test equipment used in the program and address
each of the requirements set forth at 40 CFR 51.358. The specifications
must describe the emission analysis process, the necessary test
equipment, the required features, and written acceptance testing
criteria and procedures.
    In its December 19, 2007 submission, Connecticut provided written
equipment specifications as contained in EPA's guidance and the
appendices of EPA's I/M rule. The Connecticut SIP submission and its
appendices address the requirements in 40 CFR 51.358 and include
descriptions of performance features and functional characteristics of
the computerized test systems. It references 40 CFR Part 51 and 85, and
includes the procedures outlined in 40 CFR 85.2222 and associated
guidance. For the ASM test, EPA's Acceleration Simulation Mode Test
Procedures, Emissions Standards, Quality Control Requirements, and
Equipment Specification Final Technical Guidance (EPA420-B-04-011, July
2004) will be used. The necessary test equipment, required features,
and acceptance testing criteria are mandated by the testing contract
specifications, and section 8 of the SIP narrative.

I. Quality Control

    Under EPA's I/M rule, the SIP must include a description of quality
control and recordkeeping procedures. The SIP also must include the
procedures manual, rule, and ordinance or law describing and
establishing quality control procedures and requirements.
    The Connecticut I/M SIP narrative and contract contain descriptions
and requirements establishing the quality control procedures in
accordance with the federal I/M rule and EPA guidance. These
requirements will help ensure that equipment calibrations are properly
performed and recorded and that the necessary compliance document
security is maintained. As described in section 9 of the SIP narrative,
the Connecticut SIP complies with all specifications for quality
control set forth in Section 51.359 and Appendix A of the federal I/M
rule, and EPA's technical guidance.

J. Waivers and Compliance via Diagnostic Inspection

    Under EPA's I/M rule the SIP must include a maximum waiver rate
expressed as a percentage of initially failed vehicles. This waiver
rate is used for estimating emission reduction benefits in the modeling
analysis. Corrective action must be taken if the waiver rate exceeds
that estimated in the SIP, or the state must revise the SIP and claim
emission reductions accordingly. The SIP also must describe the waiver
criteria and procedures, including cost limits, quality assurance
methods and measures, and administration. Lastly, the SIP must include
the necessary legal authority, ordinance(s), or rules to issue waivers,
set and adjust cost limits as required, and carry out any other
functions necessary to administer the waiver system, including
enforcement of the waiver provisions.
    Cost limits for the minimum expenditure waivers must be in
accordance with the CAA and federal I/M rule. Expenditures of at least
$660 for actual, non-tampering related repairs, must be spent in order
to qualify for a waiver in the enhanced I/M program. The State intends
to annually update the cost to receive a waiver from the emissions
testing program. In addition, a time extension, as allowed under EPA's
rule, is also allowed in Connecticut's program. Connecticut has
demonstrated that it can meet the enhanced I/M performance standard
testing with its current program design.
    The Connecticut program includes a waiver rate of 1% of initially
failed vehicles in the area. These waiver rates are used in the
modeling demonstration. The DEP has committed in the December 2007
submittal that, if the waiver rates are higher than estimated as
determined by its program reports, the State will take corrective
action to address the deficiency. The SIP describes the three types of
waivers the State will allow, including: a minimum expenditure, a time
extension, and a one-time hardship waiver provision. These issues are
dealt with in a manner consistent with the federal I/M rule. The proper
criteria, procedures, quality assurance and administration regarding
the issuance of waivers, consistent with EPA's I/M rule, will be
ensured by the DEP and its contractor and are detailed in the SIP
submission in section 10 of the SIP narrative and DMV rules at section
14-164c-11a.

K. Motorist Compliance Enforcement

    Under EPA's I/M rule, the SIP must provide information concerning
motorist enforcement, including: (1) A description of the existing
compliance mechanism if it will continue to be used for this program,
and the demonstration that it is as effective or more effective than
registration denial enforcement; (2) an identification of the agencies
responsible for performing each of the applicable activities in this
section; (3) a description of, and accounting for, all classes of
exempt vehicles; and (4) a description of the plan for testing fleet
vehicles, rental car fleets, leased vehicles, and any other special
classes of subject vehicles, such as those operated (but not
necessarily registered) in the program area. Also, the SIP must include
a determination of the current compliance rate based on a study of the
system including an estimate of compliance losses due to loopholes,
counterfeiting, and unregistered vehicles. Estimates of the effect of
closing such loopholes and otherwise improving the enforcement
mechanism must be supported with detailed analyses. In addition, the
SIP needs to include the legal authority to implement and enforce the
program. Lastly, the SIP must include a commitment to an enforcement
level and minimum

compliance level used for modeling purposes and to be maintained, at a
minimum, in practice.
    The State of Connecticut has chosen to use a program of denying
registration to anyone who fails to meet emission testing requirements.
The motorist compliance enforcement program will be implemented
primarily by the Connecticut Department of Motor Vehicles. The
enforcement strategy is described in the December 19, 2007 submittal.
The enforcement strategy is designed to ensure a high rate of
compliance. Those not receiving the emissions test as scheduled will be
subject to fines and late penalties, and also be denied registration
when their registration expires. Connecticut presently has a 99 percent
compliance rate with the inspection program. The legal authority to
implement and enforce the program is included in the Connecticut State
law and in DEP and DMV rules as submitted on December 19, 2007.
(Connecticut laws at Chapter 246a--``Motor Vehicle Emissions, Section
14-164c''; Connecticut Department of Environmental Protection
Regulations entitled ``Emission standards and on-board diagnostic II
test requirements for periodic motor vehicle inspection and
maintenance'' at Section 22a-174-27; and Connecticut Department of
Motor Vehicles Regulation entitled ``Periodic Motor Vehicle Emissions
Inspection and Maintenance'' at section 14-164c-1a to section 14-164c-
18a). Additional detail of the motorist compliance enforcement program
is included in section 11 of the SIP narrative.

L. Motorist Compliance Enforcement Program Oversight

    Under EPA's I/M rule, the SIP must include a description of
enforcement program oversight and information management activities.
    The Connecticut I/M SIP revision provides for regular auditing of
its enforcement program and adherence to effective management
practices, including adjustments to improve the program when necessary.
These program oversight and information management activities are
described in the SIP narrative, and include a description of the
Emissions Data Base Management System (EDBMS) and how this system
interfaces with the Department of Information Technology (DoIT) vehicle
registration records. If a vehicle is out of compliance with the
emissions testing requirement, registration is denied. This is done
through computer matching and is directly available to law enforcement.
The SIP describes the procedures to be followed in identifying
noncomplying vehicles, along with appropriate follow-up and program
documentation audits in section 12 of the SIP narrative.

M. Quality Assurance

    Under EPA's I/M rule, the SIP must include a description of the
quality assurance program, and written procedure manuals covering both
overt and covert performance audits, record audits, and equipment
audits.
    The December 19, 2007, submittal from Connecticut includes a
description of the quality assurance program. The program will include
operation and progress reports and overt and covert performance audits.
Additionally, all test centers are video audited through remote visual
observation during all scheduled hours. Overt audits occur at each
station at least 3 times per month and covert audits are conducted at
least 4 times per year, both in response to customer complaints and as
targeted follow-up. Detailed QA/QC procedures are included in the SIP
submittal at section 13 of the SIP narrative and in the inspection
agreement.

N. Enforcement Against Contractors, Stations and Inspectors

    Under EPA's I/M rule, the SIP must include a penalty schedule and
legal authority for establishing and imposing penalties, civil fines,
station and inspector license suspension, and revocations. In the case
of state constitutional impediments precluding immediate authority to
suspend licenses, the state Attorney General shall furnish an official
opinion within the SIP explaining the constitutional impediment as well
as relevant case law. The SIP also must describe the administrative and
judicial procedures and responsibilities relevant to the enforcement
process, including the agencies, courts, and jurisdictions involved;
personnel to prosecute and adjudicate cases; and other aspects of the
enforcement of the program requirements, the resources to be allocated
to the enforcement function, and the source of those funds. In states
that are without immediate suspension authority, the SIP must
demonstrate that sufficient resources, personnel, and systems are in
place to meet the three-day case management requirement for violations
that directly affect emission reductions.
    The Connecticut I/M SIP revision includes specific penalties in its
enforcement against contractors, stations and inspectors in accordance
with the federal I/M rule. Based on its SIP submittal dated December
19, 2007, the State's enforcement procedures can be pursued through
contractual or regulatory action. The State, through the contract that
it has been authorized to enter into and directly under Connecticut
laws at Chapter 246a--``Motor Vehicle Emissions, section 14-
164c(f)(4)'', has the authority to immediately suspend a station
inspector for violations that directly affect emission reduction
benefits and a variety of other violations of procedures. Details are
found in Appendix 14 of the SIP submittal and are included in the
contract Inspection Agreement.

O. Data Analysis and Reporting

    Under EPA's I/M rule, the SIP must describe the types of data to be
collected.
    The Connecticut I/M SIP provides for collecting test data to link
specific test results to specific vehicles, I/M program registrants,
test sites, and inspectors. The SIP in Section 16 of the SIP narrative,
lists the specific types of test data and quality control data which
will be collected. The data will be used to generate reports concerning
test data, quality assurance, quality control, enforcement, as well as
necessary changes and identified weaknesses in the program. The state
has also committed to collecting all data necessary for the quality
assurance and enforcement reports, as required by section 51.366 of the
federal I/M rule.

P. Inspector Training and Licensing or Certification

    Under EPA's I/M rule, the SIP must include a description of the
training program, the written and hands-on tests, and the licensing or
certification process.
    The I/M SIP submittal from the DEP provides detail on the inspector
training program. The Connecticut I/M SIP provides for implementation
of training, licensing, and refresher programs for emission inspectors.
The SIP and the inspection contract describe this program and
curriculum including written and hands-on testing at least once every
two years. All inspectors will be required to be certified to inspect
vehicles in the Connecticut I/M program. Further details of the
Inspector Training Program are included in section 17 of the SIP
narrative.

Q. Improving Repair Effectiveness

    Under EPA's I/M rule, the SIP must include a description of the
technical assistance program to be implemented, a description of the
procedures and criteria to be used in meeting the performance
monitoring requirements of this section for enhanced I/M programs, and
a description of the repair

technician training resources available in the community.
    In the December 19, 2007 submittal, Connecticut provided additional
detail and a description of the technical assistance, performance
monitoring and repair technician training programs to be implemented.
The SIP revision, as detailed in section 19 of the SIP narrative,
provides for regularly informing repair facilities about changes to the
inspection program, training course schedules, common problems, and
potential solutions for particular engine families, diagnostic tips,
repairs, and other assistance issues. As described in the submittal,
the State has also ensured that a repair technician hotline is be
available for repair technicians, and issued a contract to serve this
purpose. Performance monitoring statistics of repair facilities will be
provided to motorists whose vehicles fail the I/M test, as required in
enhanced I/M areas. The State has committed to ensure that adequate
repair technician training exists by establishing training courses at
technical schools in the area.

R. Compliance With Recall Notices

    Under EPA's I/M rule, the SIP must describe, for enhanced I/M
programs, the procedures used to incorporate the vehicle recall lists
provided into the inspection or registration database, the quality
control methods used to insure that recall repairs are properly
documented and tracked, and the method (inspection failure or
registration denial) used to enforce the recall requirements. EPA has
not yet established a computerized database listing all recalled
vehicles.
    The revised Connecticut I/M SIP will ensure that vehicles subject
to enhanced I/M programs, that are included in either a voluntary
emission recall or a remedial plan determination pursuant to the CAA,
have had the appropriate repairs made prior to the inspection. As
described in section 20 of the SIP narrative, the State and contractor
will implement this when EPA databases exist which identify vehicles
that have not completed recall repairs by an electronic database. At
that time, motorists with unresolved recall notices will be required to
show proof of compliance or will be denied the opportunity for
inspection.

S. On-Road Testing

    Under the CAA and EPA's I/M rule, the SIP must include a detailed
description of the on-road testing program required in enhanced I/M
areas, including the types of testing, test limits and criteria, the
number of vehicles (the percentage of the fleet) to be tested, the
number of employees to be dedicated to the on-road testing effort, the
methods for collecting, analyzing, utilizing, and reporting the results
of on-road testing and the portion of the program budget to be
dedicated to on-road testing. Also, the SIP must include the legal
authority necessary to implement the on-road testing program, including
the authority to enforce off-cycle inspection and repair requirements.
In addition, emission reduction credit for on-road testing programs can
only be granted for a program designed to obtain significant emission
reductions over and above those predicted to be achieved by other
aspects of the I/M program. The SIP needs to include technical support
for the claimed additional emission reductions.
    The I/M SIP submitted on December 19, 2007, includes a description
of Connecticut's on-road testing program in section 21 of the SIP
narrative. The testing program will include 0.5% of the subject
vehicles, or 20,000 vehicles. Vehicles with emission readings will be
measured by remote sensing devices. The State of Connecticut has the
legal authority to require a vehicle to obtain an out-of-cycle
inspection at a vehicle emission inspection facility (Connecticut laws
at Chapter 246a--``Motor Vehicle Emissions, section 14-164c(j)''). The
State did not include additional modeling credit for this portion of
the program in the modeling demonstrating that EPA's performance
standard was met.

T. Concluding Statement

    A more detailed analysis of the State's submittal and how it meets
the federal requirements is contained in the EPA's technical support
document (TSD) prepared for this action. The TSD is available from the
EPA New England Regional office listed above. The criteria used to
review the submitted SIP revision are based on the requirements set
forth in section 182 of the CAA and in the federal I/M regulations.
Based on these requirements, EPA developed a detailed I/M approvability
checklist to be used nationally to determine if I/M programs meet the
requirements of the CAA and the federal I/M rule. The checklist states
the federal requirements, referenced by section of the rule, and
whether the Connecticut program meets such requirements. This
checklist, the CAA, and the federal I/M regulation formed the basis for
EPA's technical review. EPA has reviewed the Connecticut I/M SIP
revision submitted to the EPA using the criteria stated above. The
Connecticut regulations and accompanying materials contained in the SIP
submittals from the State represent an acceptable plan to comply with
the I/M requirements and meet all the criteria required for EPA to
approve the SIP. EPA's review of the materials submitted indicates that
Connecticut has revised its I/M program in accordance with the
requirements of the CAA, 40 CFR Part 51, and all of EPA's technical
requirements for an approvable vehicle inspection and maintenance
program, including OBD2.

V. Final Action

    EPA is approving the SIP revision submitted by the State of
Connecticut of December 19, 2007. This SIP revision contains the
State's revised vehicle inspection and maintenance program.
Specifically, EPA is approving the Connecticut Department of Motor
Vehicles Regulation at section 14-164c-1a to section 14-164c-18a
(effective May 28, 2004), and the Connecticut Department of
Environmental Protection Regulations at section 22a-174-27 (August 25,
2004) and incorporating these rules into the Connecticut SIP. EPA is
approving Connecticut's revised I/M program because it is consistent
with the CAA I/M requirements and EPA's I/M regulations and it will
strengthen the Connecticut SIP.
    The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
relevant adverse comments be filed. This rule will be effective
February 3, 2009 without further notice unless the Agency receives
relevant adverse comments by January 5, 2009.
    If the EPA receives such comments, then EPA will publish a notice
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period on the proposed rule. All parties
interested in commenting on the proposed rule should do so at this
time. If no such comments are received, the public is advised that this
rule will be effective on February 3, 2009 and no further action will
be taken on the proposed rule. Please note that if EPA receives adverse
comment on an amendment, paragraph, or section of this rule and if that
provision may be severed from the remainder of the rule, EPA may adopt

as final those provisions of the rule that are not the subject of an
adverse comment.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP 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 SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     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).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 3, 2009. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.

    Dated: September 12, 2008.
Robert W. Varney,
Regional Administrator, EPA New England.

0
Part 52 of chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart H--Connecticut

0
2. Section 52.370 is amended by adding paragraph (c)(98) to read as
follows:

Sec.  52.370  Identification of plan.

* * * * *
    (c) * * *
    (98) Revisions to the State Implementation Plan submitted by the
Connecticut Department of Environmental Protection on December 19,
2007.
    (i) Incorporation by reference.
    (A) Connecticut Department of Environmental Protection Regulations
entitled ``Emission standards and on-board diagnostic II test
requirements for periodic motor vehicle inspection and maintenance'' at
section 22a-174-27 (effective in the State of Connecticut on August 25,
2004).
    (B) Connecticut Department of Motor Vehicles Regulation entitled
``Periodic Motor Vehicle Emissions Inspection and Maintenance'' at
section 14-164c-1a to Section 14-164c-18a (effective in the State of
Connecticut on May 28, 2004).

0
3. In Sec.  52.385, Table 52.385 is amended by adding new entries to
existing state citations for section 22a-174-27 and Section 14-164c to
read as follows:

Sec.  52.385  EPA-approved Connecticut Regulations.

* * * * *

                                                         Table 52.385--EPA-Approved Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Dates
                                                             --------------------------------    Federal Register       Section
     Connecticut State citation            Title/subject       Date adopted   Date  approved         citation           52.370     Comments/description
                                                                 by State         by  EPA
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
22a-174-27..........................  Emission standards and         8/25/04        12/05/08  [Insert Federal            (c)(98)  DEP regulations
                                       on-board diagnostic                                     Register page number                including emissions
                                       II test requirements                                    where the document                  standards and OBD2
                                       for periodic motor                                      begins].                            requirements.
                                       vehicle inspection
                                       and maintenance.

                                                                      * * * * * * *
14-164c.............................  Periodic Motor Vehicle         5/28/04        12/05/08  [Insert Federal            (c)(98)  DMV regulation
                                       Emissions Inspection                                    Register page number                revisions for test
                                       and Maintenance.                                        where the document                  and repair network
                                                                                begins].                            and implementing OBD2
                                                                                and other tests.

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

 [FR Doc. E8-28734 Filed 12-4-08; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 183 (Thursday, September 20, 2012)]
[Notices]
[Pages 58429-58431]
[FR Doc No: 2012-23204]

-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67862; File No. SR-NYSEMKT-2012-41]

Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing of
Proposed Rule Change Amending Commentary .04 to NYSE Amex Options Rule
903 To Permit the Exchange To List Additional Strike Prices Until the
Close of Trading on the Second Business Day Prior to Monthly Expiration

September 14, 2012.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on September 6, 2012, NYSE MKT LLC (the ``Exchange'' or
``NYSE MKT'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend Commentary .04 to NYSE Amex Options
Rule 903 to permit the Exchange to list additional strike prices until
the close of trading on the second business day prior to monthly
expiration. The text of the proposed rule change is available on the
Exchange's Web site at www.nyse.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of this filing is to amend Commentary .04 to NYSE Amex
Options Rule 903 to permit the Exchange to add additional strikes until
the close of trading on the second business day prior to a monthly
expiration.
    NYSE Amex Options Rule 903 currently permits the Exchange to open
additional series of individual stock options and Exchange-Traded Fund
Shares until the beginning of the month in which the option expires or
until five business days prior to expiration if unusual market
conditions exist.\4\ Options market participants generally prefer to
focus their trading in strike prices that immediately surround the
price of the underlying security. However, if the price of the
underlying stock moves significantly, there may be a market need for
additional strike prices to adequately account for market participants'
risk management needs in a stock. In these situations, the Exchange has
the ability to add additional series at strike prices that are better
tailored to the risk management needs of market participants.\5\ The
Exchange may make the determination to open additional series for
trading when the Exchange deems it necessary to maintain an orderly
market, to meet customer demand, or when certain price movements take
place in the underlying market.\6\ If the market need occurs prior to
five business days prior to expiration, then the market participants
may have access to an option contract that is more tailored to the
movement in the underlying stock.\7\ However, if the market need to
manage risk due to unusual market conditions comes to light anytime
from five to two days prior to expiration, then market participants are
left without a contract that is tailored to manage their risk.\8\ For
example:
---------------------------------------------------------------------------

    \4\ See Commentary .04 to NYSE Amex Options Rule 903. `Until the
fifth business day prior' generally means up through the end of the
day on the Friday of the week prior to expiration week. When options
were first approved for listing and trading in the United States,
the generally uniform rules of the options exchanges restricted the
addition of new series ``until the first calendar day of the month
in which the option expires.'' At various times in 1985, exchanges
were granted authority to list new equity options series until five
business days prior to expiration under unusual market conditions.
In 1985 there were two main concerns expressed by the Commission:
(i) worry over the proliferation of strikes and possible capacity
concerns, and (ii) effective and timely communication to market
participants about the new strikes. At the time, though, exchanges
were only allowed to list three expiration months per issue, and
were expanding from listing three strikes to listing five strikes.
Since then, there has been a continual expansion of the number of
strikes, the number of expiration months, and alternative expiration
days. Following the restructuring of OPRA in 2003, each exchange
became responsible for purchasing sufficient capacity to handle its
own quotes generated by the series and classes it listed. Also, when
options were first listed, additional strikes were communicated via
teletype and firm wires to branch offices, firm back offices, and
OCC. As communications were improved, through the use of fax
machines and then email, the time to send notifications decreased
significantly. Now, with the adoption of Streamline Options Series
Adds (``SOSA'') by OCC, notification of new strikes is in real time
throughout the industry.
    \5\ See NYSE Amex Options Rule 903.
    \6\ See NYSE Amex Options Rule 903(d).
    \7\ See NYSE Amex Options Rule 903(d).
    \8\ While these situations are relatively rare, the Exchange
represents that approximately two times a month there is a
legitimate need to add additional strikes closer to expiration than
the five business day limitation permits, due to it being necessary
to maintain an orderly market, to meet customer demand, or when
certain price movements take place in the underlying market.
---------------------------------------------------------------------------

     On October 17, 2011, a Monday of the week that monthly
options expired, Crocs Inc. (CROX) closed at $26.65.
     After the close of trading the issuer published a warning
regarding earnings, and on Tuesday morning the underlying opened at
$17.40.
     The lowest expiring series were the $18 strike calls and
puts. The Exchange was unable to add additional series to tailor the
risk management needs of market participants in the stock due in a
situation where the stock moves more than 35%.
    In this situation, investors had no nearest term strikes to
effectively manage their risk in the underlying stock, CROX. Because of
the current five-days-before-expiration restriction, investors were
unable to tailor their hedging activities in options and effectively
manage their risk going into expiration.\9\
---------------------------------------------------------------------------

    \9\ The Exchange notes that if the proposed rule were in place,
the Exchange would have added $15, $16, and $17 strikes expiring the
following Saturday.
---------------------------------------------------------------------------

    The Exchange proposes to permit the listing of additional strikes
until the close of trading on the second business day prior to
expiration in unusual market conditions. Since expiration of the
monthly contract is on a Saturday, the close of trading on the second
business day will typically fall on a Thursday. However, in the cases
where Friday is a holiday during which the Exchange is closed, the
close of trading on the second business day will occur on a Wednesday.
The Exchange will continue to make the determination to open additional
series for trading when the Exchange deems it necessary to maintain an
orderly market, to meet customer demand, or when certain price

movements take place in the underlying market. The proposed change will
provide an additional four days to the Exchange to gauge market impact
of the underlying stock and to react to any market conditions that
would render additional series prior to expiration beneficial to market
participants. The Exchange believes that the impact on the market from
the proposed change will be very minimal to market participants,
however it will be extremely beneficial in that minority of situations
where unusual market conditions dictate immediately prior to
expiration. The proposal would simply allow participants to adjust
their risk exposure in narrow situations when an unusual market event
occurred on trading days 2, 3, 4, 5 prior to expiration.
    This proposal does not raise any capacity concerns on the Exchange,
because the changes have no material difference in impact from the
current rules. The Exchange notes the proposed change allows for new
strikes that would otherwise be permitted to add under existing rules
either on the fifth day prior or immediately after expiration.\10\ A
strike which opens two days prior to expiration will have minimal
impact on quoting, as it adds two series out of hundreds of thousands,
and only for a small number of days.\11\ Thus, any additional strikes
that may be added under the proposed change would have no measurable
effect on systems capacity.
---------------------------------------------------------------------------

    \10\ Any new strikes added under this proposal would be added in
a manner consistent with the range limitations described in NYSE
Amex Options Rule 903A.
    \11\ In the case of a multi-stock event where multiple stocks
may be subject to unusual market conditions, a strike which opens
two days prior to expiration will also have minimal impact on
quoting, as it adds two series per stock out of hundreds of
thousands, and only for a small number of days.
---------------------------------------------------------------------------

    The Exchange discussed the proposed listing and trading of series
during expiration week with the OCC. The OCC represented that it is
able to accommodate the proposal and would have no operational concerns
with adding new series on any day except the last day of trading an
expiring series.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Securities Exchange Act of 1934 (the
``Act''),\12\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\13\ in particular, in that it is designed to
promote just and equitable principles of trade, remove impediments to
and perfect the mechanisms of a free and open market and a national
market system and, in general, to protect investors and the public
interest.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that providing an additional four days to the
Exchange to gauge market impact and to react to any market conditions
prior to expiration beneficial [sic] will result in a continuing
benefit to investors by giving them more flexibility to closely tailor
their investment decisions and hedging decisions prior to expiration.
The Exchange also believes that the additional four days will provide
the investing public and other market participants with additional
opportunities to hedge their investment thus allowing these investors
to better manage their risk exposure with additional in the money
series. While the four additional days may generate additional quote
traffic, the Exchange does not believe that this increased traffic will
become unmanageable since the proposal remains limited to the narrow
situations when an unusual market event occurred on trading days 2, 3,
4, 5 prior to expiration.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEMKT-2012-41.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549.

All submissions should refer to File Number SR-NYSEMKT-2012-41. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEMKT-2012-41 and should
be submitted on or before October 11, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
---------------------------------------------------------------------------

    \14\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-23204 Filed 9-19-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 78, Number 243 (Wednesday, December 18, 2013)]
[Rules and Regulations]
[Pages 76567-76570]
[FR Doc No: 2013-29968]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2013-0525; FRL-9903-19]

Tall Oil, Polymer With Polyethylene Glycol and Succinic Anhydride
Monopolyisobutylene Derivs.; Tolerance Exemption

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This regulation establishes an exemption from the requirement
of a tolerance for residues of tall oil, polymer with polyethylene
glycol and succinic anhydride monopolyisobutylene derivs. (CAS Reg. No.
1398573-80-2) when used as an inert ingredient in a pesticide
formulation. Huntsman Corp. submitted a petition to EPA under the
Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption
from the requirement of a tolerance. This regulation eliminates the
need to establish a maximum permissible level for residues of tall oil,
polymer with polyethylene glycol and succinic anhydride
monopolyisobutylene derivs. on food or feed commodities.

DATES: This regulation is effective December 18, 2013. Objections and
requests for hearings must be received on or before February 18, 2014,
and must be filed in accordance with the instructions provided in 40
CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPP-2013-0525, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory
Public Docket (OPP Docket) in the Environmental Protection Agency
Docket Center (EPA/DC), EPA West Bldg., Rm. 3334, 1301 Constitution
Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the OPP Docket is (703) 305-
5805. Please review the visitor instructions and additional information
about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Lois Rossi, Registration Division
(7505P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone
number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
The following list of North American Industrial Classification System
(NAICS) codes is not intended to be exhaustive, but rather provides a
guide to help readers determine whether this document applies to them.
Potentially affected entities may include:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).

B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR
part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

C. Can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an
objection to any aspect of this regulation and may also request a
hearing on those objections. You must file your objection or request a
hearing on this regulation in accordance with the instructions provided
in 40 CFR part 178. To ensure proper receipt by EPA, you must identify
docket ID number EPA-HQ-OPP-2013-0525 in the subject line on the first
page of your submission. All objections and requests for a hearing must
be in writing, and must be received by the Hearing Clerk on or before
February 18, 2014. Addresses for mail and hand delivery of objections
and hearing requests are provided in 40 CFR 178.25(b).
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing (excluding any Confidential Business Information (CBI)) for
inclusion in the public docket. Information not marked confidential
pursuant to 40 CFR part 2 may be disclosed publicly by EPA without
prior notice. Submit the non-CBI copy of your objection or hearing
request, identified by docket ID number EPA-HQ-OPP-2013-0525, by one of
the following methods.
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be CBI or other
information whose disclosure is restricted by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC
20460-0001.
     Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at http://www.epa.gov/dockets.

II. Background and Statutory Findings

    In the Federal Register of September 12, 2013 (78 FR 56185) (FRL-
9399-7), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C.
346a, announcing the receipt of a pesticide petition (IN-10605) filed
by Huntsman Corp., 8600 Gosling Road, The Woodlands, TX 77381. The
petition requested that 40 CFR 180.960 be amended by establishing an
exemption from the requirement of a tolerance for residues of tall oil,
polymer with polyethylene glycol and succinic anhydride
monopolyisobutylene derivs.; CAS Reg. No. 1398573-80-2. That document
included a summary of the petition prepared by the petitioner and
solicited comments on the petitioner's request. The Agency received no
comments in response to the notice of filing.
    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an
exemption from the requirement for a tolerance (the legal limit for a
pesticide chemical residue in or on a food) only if EPA determines that
the exemption is ``safe.'' Section 408(c)(2)(A)(ii) of FFDCA defines
``safe'' to mean that ``there is a reasonable certainty that no harm
will result from aggregate exposure to the pesticide chemical residue,
including all anticipated dietary exposures and all other exposures for
which there is reliable information.'' This includes exposure through
drinking water and use in residential settings, but does not include
occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to
give special consideration to exposure of infants and children to the
pesticide chemical residue in establishing an exemption from the
requirement of a tolerance and to ``ensure that there is a

reasonable certainty that no harm will result to infants and children
from aggregate exposure to the pesticide chemical residue . . .'' and
specifies factors EPA is to consider in establishing an exemption.

III. Risk Assessment and Statutory Findings

    EPA establishes exemptions from the requirement of a tolerance only
in those cases where it can be shown that the risks from aggregate
exposure to pesticide chemical residues under reasonably foreseeable
circumstances will pose no appreciable risks to human health. In order
to determine the risks from aggregate exposure to pesticide inert
ingredients, the Agency considers the toxicity of the inert in
conjunction with possible exposure to residues of the inert ingredient
through food, drinking water, and through other exposures that occur as
a result of pesticide use in residential settings. If EPA is able to
determine that a finite tolerance is not necessary to ensure that there
is a reasonable certainty that no harm will result from aggregate
exposure to the inert ingredient, an exemption from the requirement of
a tolerance may be established.
    Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the
available scientific data and other relevant information in support of
this action and considered its validity, completeness and reliability
and the relationship of this information to human risk. EPA has also
considered available information concerning the variability of the
sensitivities of major identifiable subgroups of consumers, including
infants and children. In the case of certain chemical substances that
are defined as polymers, the Agency has established a set of criteria
to identify categories of polymers expected to present minimal or no
risk. The definition of a polymer is given in 40 CFR 723.250(b) and the
exclusion criteria for identifying these low-risk polymers are
described in 40 CFR 723.250(d). Tall oil, polymer with polyethylene
glycol and succinic anhydride monopolyisobutylene derivs. conforms to
the definition of a polymer given in 40 CFR 723.250(b) and meets the
following criteria that are used to identify low-risk polymers.
    1. The polymer is not a cationic polymer nor is it reasonably
anticipated to become a cationic polymer in a natural aquatic
environment.
    2. The polymer does contain as an integral part of its composition
the atomic elements carbon, hydrogen, and oxygen.
    3. The polymer does not contain as an integral part of its
composition, except as impurities, any element other than those listed
in 40 CFR 723.250(d)(2)(ii).
    4. The polymer is neither designed nor can it be reasonably
anticipated to substantially degrade, decompose, or depolymerize.
    5. The polymer is manufactured or imported from monomers and/or
reactants that are already included on the TSCA Chemical Substance
Inventory or manufactured under an applicable TSCA section 5 exemption.
    6. The polymer is not a water absorbing polymer with a number
average molecular weight (MW) greater than or equal to 10,000 daltons.
    7. The polymer does not contain certain perfluoroalkyl moieties
consisting of a CF3--or longer chain length as specified in 40 CFR
723.250(d)(6).
    Additionally, the polymer also meets as required the following
exemption criteria specified in 40 CFR 723.250(e).
    8. The polymer's number average MW of 1,200 is greater than 1,000
and less than 10,000 daltons. The polymer contains less than 10%
oligomeric material below MW 500 and less than 25% oligomeric material
below MW 1,000, and the polymer does not contain any reactive
functional groups.
    Thus, tall oil, polymer with polyethylene glycol and succinic
anhydride monopolyisobutylene derivs. meets the criteria for a polymer
to be considered low risk under 40 CFR 723.250. Based on its
conformance to the criteria in this unit, no mammalian toxicity is
anticipated from dietary, inhalation, or dermal exposure to tall oil,
polymer with polyethylene glycol and succinic anhydride
monopolyisobutylene derivs.

IV. Aggregate Exposures

    For the purposes of assessing potential exposure under this
exemption, EPA considered that tall oil, polymer with polyethylene
glycol and succinic anhydride monopolyisobutylene derivs. could be
present in all raw and processed agricultural commodities and drinking
water, and that non-occupational non-dietary exposure was possible. The
number average MW of tall oil, polymer with polyethylene glycol and
succinic anhydride monopolyisobutylene derivs. is 1,200 daltons.
Generally, a polymer of this size would be poorly absorbed through the
intact gastrointestinal tract or through intact human skin. Since tall
oil, polymer with polyethylene glycol and succinic anhydride
monopolyisobutylene derivs. conform to the criteria that identify a
low-risk polymer, there are no concerns for risks associated with any
potential exposure scenarios that are reasonably foreseeable. The
Agency has determined that a tolerance is not necessary to protect the
public health.

V. Cumulative Effects From Substances With a Common Mechanism of
Toxicity

    Section 408(b)(2)(D)(v) of FFDCA requires that, when considering
whether to establish, modify, or revoke a tolerance, the Agency
consider ``available information'' concerning the cumulative effects of
a particular pesticide's residues and ``other substances that have a
common mechanism of toxicity.''
    EPA has not found tall oil, polymer with polyethylene glycol and
succinic anhydride monopolyisobutylene derivs. to share a common
mechanism of toxicity with any other substances, and tall oil, polymer
with polyethylene glycol and succinic anhydride monopolyisobutylene
derivs. does not appear to produce a toxic metabolite produced by other
substances. For the purposes of this tolerance action, therefore, EPA
has assumed that tall oil, polymer with polyethylene glycol and
succinic anhydride monopolyisobutylene derivs. does not have a common
mechanism of toxicity with other substances. For information regarding
EPA's efforts to determine which chemicals have a common mechanism of
toxicity and to evaluate the cumulative effects of such chemicals, see
EPA's Web site at http://www.epa.gov/pesticides/cumulative.

VI. Additional Safety Factor for the Protection of Infants and Children

    Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an
additional tenfold margin of safety for infants and children in the
case of threshold effects to account for prenatal and postnatal
toxicity and the completeness of the data base unless EPA concludes
that a different margin of safety will be safe for infants and
children. Due to the expected low toxicity of tall oil, polymer with
polyethylene glycol and succinic anhydride monopolyisobutylene derivs.,
EPA has not used a safety factor analysis to assess the risk. For the
same reasons the additional tenfold safety factor is unnecessary.

VII. Determination of Safety

    Based on the conformance to the criteria used to identify a low-
risk polymer, EPA concludes that there is a reasonable certainty of no
harm to the U.S. population, including infants and children, from
aggregate exposure to

residues of tall oil, polymer with polyethylene glycol and succinic
anhydride monopolyisobutylene derivs.

VIII. Other Considerations

A. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since
the Agency is establishing an exemption from the requirement of a
tolerance without any numerical limitation.

B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S.
tolerances with international standards whenever possible, consistent
with U.S. food safety standards and agricultural practices. EPA
considers the international maximum residue limits (MRLs) established
by the Codex Alimentarius Commission (Codex), as required by FFDCA
section 408(b)(4). The Codex Alimentarius is a joint United Nations
Food and Agriculture Organization/World Health Organization food
standards program, and it is recognized as an international food safety
standards-setting organization in trade agreements to which the United
States is a party. EPA may establish a tolerance that is different from
a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain
the reasons for departing from the Codex level.
    The Codex has not established a MRL for tall oil, polymer with
polyethylene glycol and succinic anhydride monopolyisobutylene derivs.

IX. Conclusion

    Accordingly, EPA finds that exempting residues of tall oil, polymer
with polyethylene glycol and succinic anhydride monopolyisobutylene
derivs. from the requirement of a tolerance will be safe.

X. Statutory and Executive Order Reviews

    This final rule establishes a tolerance under FFDCA section 408(d)
in response to a petition submitted to the Agency. The Office of
Management and Budget (OMB) has exempted these rules from review under
Executive Order 12866, entitled ``Regulatory Planning and Review'' (58
FR 51735, October 4, 1993). Because this final rule has been exempted
from review under Executive Order 12866, this final rule is not subject
to Executive Order 13211, entitled ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) or Executive Order 13045, entitled ``Protection of
Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997). This final rule does not contain any
information collections subject to OMB approval under the Paperwork
Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it involve any
technical standards that would require Agency consideration of
voluntary consensus standards pursuant to section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272
note).
    Since tolerances and exemptions that are established on the basis
of a petition under FFDCA section 408(d), such as the tolerance in this
final rule, do not require the issuance of a proposed rule, the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.), do not apply.
    This final rule directly regulates growers, food processors, food
handlers, and food retailers, not States or tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of FFDCA section 408(n)(4). As such, the Agency has determined that
this action will not have a substantial direct effect on States or
tribal governments, on the relationship between the national government
and the States or tribal governments, or on the distribution of power
and responsibilities among the various levels of government or between
the Federal Government and Indian Tribes, or otherwise have any unique
impacts on local governments. Thus, the Agency has determined that
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 10,
1999) and Executive Order 13175, entitled ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249, November 9,
2000) do not apply to this final rule. In addition, this final rule
does not impose any enforceable duty or contain any unfunded mandate as
described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA) (2 U.S.C. 1501 et seq.).
    Although this action does not require any special considerations
under Executive Order 12898, entitled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994), EPA seeks to achieve
environmental justice, the fair treatment and meaningful involvement of
any group, including minority and/or low-income populations, in the
development, implementation, and enforcement of environmental laws,
regulations, and policies. As such, to the extent that information is
publicly available or was submitted in comments to EPA, the Agency
considered whether groups or segments of the population, as a result of
their location, cultural practices, or other factors, may have atypical
or disproportionately high and adverse human health impacts or
environmental effects from exposure to the pesticide discussed in this
document, compared to the general population.

XI. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This action is not a ``major rule''
as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.

    Dated: December 6, 2013.
Lois Rossi,
Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority:  21 U.S.C. 321(q), 346a and 371.

0
2. In Sec.  180.960, alphabetically add the following polymer to the
table to read as follows:

Sec.  [emsp14]180.960  Polymers; exemptions from the requirement of a
tolerance.

* * * * *

------------------------------------------------------------------------
                         Polymer                              CAS No.
------------------------------------------------------------------------

                              * * * * * * *
Tall oil, polymer with polyethylene glycol and succinic     1398573-80-2
 anhydride monopolyisobutylene derivs., minimum number
 average molecular weight (in amu), 1,200...............

                              * * * * * * *
------------------------------------------------------------------------

[FR Doc. 2013-29968 Filed 12-17-13; 8:45 am]
BILLING CODE 6560-50-P


confirming the extension of time on each party.
    (2) Written motion for extension. If the parties do not agree to an
extension of time for filing a reply brief, a party desiring an
extension of time may file a written motion for an extension in
accordance with Sec.  13.210 and must serve a copy of the motion on
each party in accordance with Sec.  13.211. Any party choosing to
respond to the motion must file and serve a written response to the
motion no later than 10 days after service of the motion The FAA
decisionmaker may grant an extension if good cause for the extension is
shown in the motion.
    (f) Other briefs. The FAA decisionmaker may allow any person to
submit an amicus curiae brief in an appeal of an initial decision. A
party may not file more than one brief unless permitted by the FAA
decisionmaker. A party may petition the FAA decisionmaker, in writing,
for leave to file an additional brief and must serve a copy of the
petition on each party. The party may not file the additional brief
with the petition. The FAA decisionmaker may grant leave to file an
additional brief if the party demonstrates good cause for allowing
additional argument on the appeal. The FAA decisionmaker will allow a
reasonable time for the party to file the additional brief.
    (g) Number of copies. A party must file the original plus one copy
of the appeal brief or reply brief, but only one copy if filing by
email or fax, as provided in Sec.  13.210.
    (h) Oral argument. The FAA decisionmaker may permit oral argument
on the appeal. On the FAA decisionmaker's own initiative, or upon
written motion by any party, the FAA decisionmaker may find that oral
argument will contribute substantially to the development of the issues
on appeal and may grant the parties an opportunity for oral argument.
    (i) Waiver of objections on appeal. If a party fails to object to
any alleged error regarding the proceedings in an appeal or a reply
brief, the party waives any objection to the alleged error. The FAA
decisionmaker is not required to consider any objection in an appeal
brief, or any argument in the reply brief, if a party's objection or
argument is based on evidence contained on the record and the party
does not specifically refer to the pertinent evidence from the record
in the brief.
    (j) FAA decisionmaker's decision on appeal. The FAA decisionmaker
will review the record, the briefs on appeal, and the oral argument, if
any, when considering the issues on appeal. The FAA decisionmaker may
affirm, modify, or reverse the initial decision, make any necessary
findings, or remand the case for any proceedings that the FAA
decisionmaker determines may be necessary. The FAA decisionmaker may
assess a civil penalty but must not

assess a civil penalty in an amount greater than that sought in the
complaint.
    (1) The FAA decisionmaker may raise any issue, on the FAA
decisionmaker's own initiative, that is required for proper disposition
of the proceedings. The FAA decisionmaker will give the parties a
reasonable opportunity to submit arguments on the new issues before
making a decision on appeal. If an issue raised by the FAA
decisionmaker requires the consideration of additional testimony or
evidence, the FAA decisionmaker will remand the case to the
administrative law judge for further proceedings and an initial
decision related to that issue. If an issue raised by the FAA
decisionmaker is solely an issue of law, or the issue was addressed at
the hearing but was not raised by a party in the briefs on appeal, a
remand of the case to the administrative law judge for further
proceedings is not required but may be provided in the discretion of
the FAA decisionmaker.
    (2) The FAA decisionmaker will issue the final decision and order
of the Administrator on appeal in writing and will serve a copy of the
decision and order on each party. Unless a petition for review is filed
pursuant to Sec.  13.235, a final decision and order of the
Administrator will be considered an order assessing civil penalty if
the FAA decisionmaker finds that an alleged violation occurred and a
civil penalty is warranted.
    (3) A final decision and order of the Administrator after appeal is
precedent in any other civil penalty action. Any issue, finding or
conclusion, order, ruling, or initial decision of an administrative law
judge that has not been appealed to the FAA decisionmaker is not
precedent in any other civil penalty action.

Sec.  13.234   Petition to reconsider or modify a final decision and
order of the FAA decisionmaker on appeal.

    (a) General. Any party may petition the FAA decisionmaker to
reconsider or modify a final decision and order issued by the FAA
decisionmaker on appeal from an initial decision. A party must file a
petition to reconsider or modify in accordance with Sec.  13.210 not
later than 30 days after service of the FAA decisionmaker's final
decision and order on appeal and must serve a copy of the petition on
each party in accordance with Sec.  13.211. A party is not required to
serve any documents under this section on the administrative law judge.
The FAA decisionmaker will not reconsider or modify an initial decision
and order issued by an administrative law judge that has not been
appealed by any party to the FAA decisionmaker.
    (b) Number of copies. The parties must file the original plus one
copy of the petition or the reply to the petition, but only one copy if
filing by email or fax, as provided in Sec.  13.210.
    (c) Contents. A party must state briefly and specifically the
alleged errors in the final decision and order on appeal, the relief
sought by the party, and the grounds that support the petition to
reconsider or modify.
    (1) If the petition is based, in whole or in part, on allegations
regarding the consequences of the FAA decisionmaker's decision, the
party must describe these allegations and must describe, and support,
the basis for the allegations.
    (2) If the petition is based, in whole or in part, on new material
not previously raised in the proceedings, the party must set forth the
new material and include affidavits of prospective witnesses and
authenticated documents that would be introduced in support of the new
material. The party must explain, in detail, why the new material was
not discovered through due diligence prior to the hearing.
    (d) Repetitious and frivolous petitions. The FAA decisionmaker will
not consider repetitious or frivolous petitions. The FAA decisionmaker
may summarily dismiss repetitious or frivolous petitions to reconsider
or modify.
    (e) Reply petitions. Any party replying to a petition to reconsider
or modify must file the reply in accordance with Sec.  13.210 no later
than 10 days after service of the petition on that party, and must also
serve a copy of the reply on each party in accordance with Sec.
13.211.
    (f) Effect of filing petition. The filing of a timely petition
under this section will stay the effective date of the FAA
decisionmaker's decision and order on appeal until final disposition of
the petition by the FAA decisionmaker.
    (g) FAA decisionmaker's decision on petition. The FAA decisionmaker
has discretion to grant or deny a petition to reconsider. The FAA
decisionmaker will grant or deny a petition to reconsider within a
reasonable time after receipt of the petition or receipt of the reply
petition, if any. The FAA decisionmaker may affirm, modify, or reverse
the final decision and order on appeal, or may remand the case for any
proceedings that the FAA decisionmaker determines may be necessary.

Sec.  13.235   Judicial review of a final decision and order.

    (a) In cases under the Federal aviation statute, a party may seek
judicial review of a final decision and order of the Administrator, as
provided in 49 U.S.C. 46110(a), and, as applicable, in 49 U.S.C.
46301(d)(7)(D)(iii), 46301(g), or 47532.
    (b) In cases under the Federal hazardous materials transportation
statute, a party may seek judicial review of a final decision and order
of the Administrator, as provided in 49 U.S.C. 5127.
    (c) A party seeking judicial review of a final order issued by the
Administrator may file a petition for review in the United States Court
of Appeals for the District of Columbia Circuit or in the United States
Court of Appeals for the circuit in which the party resides or has its
principal place of business.
    (d) The party must file the petition for review no later than 60
days after service of the Administrator's final decision and order.

Sec.  13.236   Alternative dispute resolution.

    Parties may use mediation to achieve resolution of issues in
controversy addressed by this subpart. Parties seeking alternative
dispute resolution services may engage the services of a mutually
acceptable mediator. The mediator must not participate in the
adjudication under this subpart of any matter in which the mediator has
provided mediation services. Mediation discussions and submissions will
remain confidential consistent with the provisions of the
Administrative Dispute Resolution Act and other applicable Federal
laws.

    Issued under authority provided by 49 U.S.C. 106(f) and 44701(a)
in Washington, DC, on or about August 17, 2021.
Steve Dickson,
Administrator.
[FR Doc. 2021-19948 Filed 9-30-21; 8:45 am]
BILLING CODE 4910-13-P