[Federal Register: September 19, 2008 (Volume 73, Number 183)]
[Notices]
[Page 54416]
[DOCID:fr19se08-73]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[FEMA-3294-EM]

Texas; Amendment No. 2 to Notice of an Emergency Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice amends the notice of an emergency declaration for
the State of Texas (FEMA-3294-EM), dated September 10, 2008, and
related determinations.

DATES: Effective Date: September 12, 2008.

FOR FURTHER INFORMATION CONTACT: Peggy Miller, Disaster Assistance
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The notice of an emergency declaration for
the State of Texas is hereby amended to include the following areas
among those areas for which the President declared an emergency on
September 10, 2008:

    Anderson, Angelina, Archer, Austin, Bee, Bell, Bowie, Brazos,
Cass, Colorado, DeWitt, Franklin, Goliad, Grayson, Gregg, Harrison,
Henderson, Hill, Hopkins, Jasper, Jim Hogg, Lamar, Lavaca, McLennan,
Montgomery, Nacogdoches, Newton, Panola, Parker, Polk, Potter,
Randall, Sabine, San Augustine, San Jacinto, Shelby, Starr, Tarrant,
Titus, Tom Green, Travis, Trinity, Tyler, Webb, Williamson, and Wise
Counties for emergency protective measures (Category B), including
direct Federal assistance, under the Public Assistance program.

(The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034, Disaster Unemployment
Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048,
Disaster Housing Assistance to Individuals and Households in
Presidentially Declared Disaster Areas; 97.049, Presidentially
Declared Disaster Assistance--Disaster Housing Operations for
Individuals and Households; 97.050, Presidentially Declared Disaster
Assistance to Individuals and Households--Other Needs; 97.036,
Disaster Grants--Public Assistance (Presidentially Declared
Disasters); 97.039, Hazard Mitigation Grant.)

R. David Paulison,
Administrator, Federal Emergency Management Agency.
[FR Doc. E8-21972 Filed 9-18-08; 8:45 am]

BILLING CODE 9110-10-P


[Federal Register Volume 84, Number 180 (Tuesday, September 17, 2019)]
[Notices]
[Pages 48990-48991]
[FR Doc No: 2019-20006]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2018-0028; Notice 1]

Mobility Ventures, LLC, Receipt of Petition for Decision of
Inconsequential Noncompliance

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

ACTION: Receipt of petition.

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SUMMARY: Mobility Ventures, LLC (Mobility), a wholly owned subsidiary
of AM General, LLC, has determined that certain model year (MY) 2015-
2016 Mobility Ventures MV-1 motor vehicles do not fully comply with
Federal Motor Vehicle Safety Standard (FMVSS) No. 126, Electronic
Stability Control Systems for Light Vehicles. Mobility filed a
noncompliance report dated February 14, 2018. Mobility subsequently
petitioned NHTSA on February 20, 2018, for a decision that the subject
noncompliance is inconsequential as it relates to motor vehicle safety.
This document announces receipt of Mobility's petition.

DATES: The closing date for comments on the petition is October 17,
2019.

ADDRESSES: Interested persons are invited to submit written data,
views, and arguments on this petition. Comments must refer to the
docket and notice number cited in the title of this notice and may be
submitted by any of the following methods:
     Mail: Send comments by mail addressed to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590.
     Hand Delivery: Deliver comments by hand to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m.
except for Federal Holidays.
     Electronically: Submit comments electronically by logging
onto the Federal Docket Management System (FDMS) website at https://www.regulations.gov/. Follow the online instructions for submitting
comments.
     Comments may also be faxed to<PHONE_NUMBER>.
    Comments must be written in the English language, and be no greater
than 15 pages in length, although there is no limit to the length of
necessary attachments to the comments. If comments are submitted in
hard copy form, please ensure that two copies are provided. If you wish
to receive confirmation that comments you have submitted by mail were
received, please enclose a stamped, self-addressed postcard with the
comments. Note that all comments received will be posted without change
to https://www.regulations.gov, including any personal information
provided.
    All comments and supporting materials received before the close of
business on the closing date indicated above will be filed in the
docket and will be considered. All comments and supporting materials
received after the closing date will also be filed and will be
considered to the fullest extent possible.
    When the petition is granted or denied, notice of the decision will
also be published in the Federal Register pursuant to the authority
indicated at the end of this notice.
    All comments, background documentation, and supporting materials
submitted to the docket may be viewed by anyone at the address and
times given above. The documents may also be viewed on the internet at
https://www.regulations.gov by following the online instructions for
accessing the dockets. The docket ID number for this petition is shown
in the heading of this notice.
    DOT's complete Privacy Act Statement is available for review in a
Federal Register notice published on April 11, 2000, (65 FR 19477-78).

SUPPLEMENTARY INFORMATION:
    I. Overview: Mobility has determined that certain MY 2015-2016
Mobility MV-1 motor vehicles do not fully comply with the requirements
of paragraph S5.3.3 of FMVSS No. 126, Electronic Stability Control
Systems for Light Vehicles (49 CFR 571.126). Mobility filed a
noncompliance report dated February 14, 2018, pursuant to CFR part 573,
Defect and Noncompliance Responsibility and Reports. Mobility
subsequently petitioned NHTSA on February 20, 2018, pursuant to 49
U.S.C. 30118(d) and 30120(h) and 49 CFR part 556, for an exemption from
the notification and remedy requirements of 49 U.S.C. Chapter 301 on
the basis that this noncompliance is inconsequential as it relates to
motor vehicle safety.
    This notice of receipt of their petition is published under 49
U.S.C. 30118 and 30120 and does not represent any agency decision or
other exercise of judgment concerning the merits of this petition.

    II. Vehicles Involved: Approximately 977 MY 2015-2016 Mobility
Ventures MV-1 vehicles, manufactured between December 22, 2014, and
August 24, 2015, are potentially involved.
    III. Noncompliance: Mobility explains that the previous model year
vehicles (2011-2014) were equipped with a 4.6L V8 powertrain with 6
ignition states and the engine was changed in model years (2015-2016)
to a 3.7L V6 powertrain with 11 ignition states. Following the change,
the supplier of the Electronic Brake Control Module (EBCM) incorrectly
programmed the EBCM memory chip to recognize the possible power mode
states. This issue led to the telltale warning lamp not illuminating to
indicate an Electronic Stability Control (ESC) fault under certain
starting conditions, thus, not complying with paragraph S5.3.3 of FMVSS
No. 126.
    IV. Rule Requirements: Paragraph S5.3.3 of FMVSS No. 126, include
the requirements relevant to this petition. As of September 1, 2011,
except as provided in paragraphs S5.3.4, S5.3.5, S5.3.8, and S5.3.10,
the ESC malfunction telltale must illuminate only when a malfunction of
the ESC system exists and must remain continuously illuminated under
the conditions specified in paragraph S5.3 for as long as the
malfunction exists (unless the ``ESC malfunction'' and ``ESC Off''
telltale are combined in a two-part telltale and the ``ESC Off''
telltale is illuminated), whenever the ignition locking system is in
the ``On'' (``Run'') position.
    V. Summary of Petition: Mobility described the subject
noncompliance and stated its belief that the noncompliance is
inconsequential as it relates to motor vehicle safety.
    In support of its petition, Mobility submitted the following
reasoning:
    1. Mobility submits that this nonconformity is inconsequential to
vehicle safety. Mobility believes that this is a de minimis
noncompliance with paragraph S5.3.3 of FMVSS No. 126 because the
Traction Control Off warning lamp will illuminate when a fault is
detected, either immediately if the Operator pauses with the key in the
``ignition on'' state before starting the vehicle, or upon driving if
the vehicle is started without pausing in the ``ignition on'' state.
While the correct telltale warning lamp does not illuminate, Operators
are still alerted to the possibility of a malfunction with the ESC
system by the illumination of the Traction Control Off warning lamp.
    2. Notwithstanding the lack of a safety risk, Mobility and BWI (the
EBCM Supplier) are developing a plug-and play re-flashing tool that
will permit uploading of revised software into the current EBCM
installed in the vehicle. This revised software correctly tracks the
ignition sequences required by FMVSS No. 126, and fully corrects the
observed noncompliance. Re-flashing is the preferred repair-solution.
Currently the only available way to update the EBCM's software is to
remove and replace the entire electrical and hydraulic unit with one
that has had its software updated. Mobility is preparing to implement
this re-flashing solution as required.
    3. Mobility has notified its dealers to stop sale of any affected
MV-1 vehicles that may be in their dealer inventory (new, used or
demonstrator) until the EBCM software is updated. While Mobility does
not believe that this technical noncompliance poses a safety risk,
Mobility Ventures authorized dealers will perform EBCM unit replacement
or re-flashing (when available) free-of-charge when vehicle owners
present to Dealers for service.
    4. Mobility is not aware of any issues with the performance of the
ESC system. As of February 2018, Mobility has not received any warranty
claims, field reports, or information about injuries or crashes related
to the performance of the ESC.
    Mobility concluded by expressing the belief that the subject
noncompliance is inconsequential as it relates to motor vehicle safety,
and that its petition to be exempted from providing notification of the
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the
noncompliance, as required by 49 U.S.C. 30120, should be granted.
    Mobility's complete petition and all supporting documents are
available by logging onto the Federal Docket Management System (FDMS)
website at: https://www.regulations.gov and by following the online
search instructions to locate the docket number listed in the heading
of this notice.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and
30120(h)) that permit manufacturers to file petitions for a
determination of inconsequentiality allow NHTSA to exempt manufacturers
only from the duties found in sections 30118 and 30120, respectively,
to notify owners, purchasers, and dealers of a defect or noncompliance
and to remedy the defect or noncompliance. Therefore, any decision on
this petition only applies to the subject vehicles that Mobility no
longer controlled at the time it determined that the noncompliance
existed. However, any decision on this petition does not relieve
vehicle distributors and dealers of the prohibitions on the sale, offer
for sale, or introduction or delivery for introduction into interstate
commerce of the noncompliant vehicles under their control after
Mobility notified them that the subject noncompliance existed.

    Authority: (49 U.S.C. 30118, 30120: delegations of authority at
49 CFR 1.95 and 501.8).

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2019-20006 Filed 9-16-19; 8:45 am]
BILLING CODE 4910-59-P


[Federal Register: September 19, 2007 (Volume 72, Number 181)]
[Notices]
[Page 53609]
[DOCID:fr19se07-126]

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SECURITIES AND EXCHANGE COMMISSION

Proposed Collection; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of Investor Education and Advocacy, Washington, DC
20549-0213.

Extension: Rule 17a-4(b)(11); SEC File No. 270-449; OMB Control No.
3235-0506.

    Notice is hereby given that pursuant to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') is soliciting comments on the collection of
information summarized below. The Commission plans to submit this
existing collection of information to the Office of Management and
Budget for extension and approval.
    Rule 17a-4(b)(11) (17 CFR 240.17a-4(b)(11)) under the Securities
Exchange Act of 1934 (15 U.S.C. 78a et seq.) describes the record
preservation requirements for those records required to be kept
pursuant to Rule 17a-3(a)(16), including how such records should be
kept and for how long, to be used in monitoring compliance with the
Commission's financial responsibility program and antifraud and
antimanipulative rules as well as other rules and regulations of the
Commission and the self-regulatory organizations. It is estimated that
approximately 105 active broker-dealer respondents registered with the
Commission incur an average burden of 315 hours per year (105
respondents multiplied by 3 burden hours per respondent equals 315
total burden hours) to comply with this rule.
    Written comments are invited on: (a) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; (b) the accuracy of the agency's estimate of
the burden of the proposed collection of information; (c) ways to
enhance the quality, utility, and clarity of the information to be
collected; and (d) ways to minimize the burden of the collection of
information on respondents, including through the use of automated
collection techniques or other forms of information technology.
Consideration will be given to comments and suggestions submitted in
writing within 60 days of this publication.
    Comments regarding the above information should be directed to: R.
Corey Booth, Director/Chief Information Officer, Securities and
Exchange Commission, C/O Shirley Martinson, 6432 General Green Way,
Alexandria, VA 22312 or by sending an e-mail to<EMAIL_ADDRESS>
Comments must be submitted within 60 days of this notice.

    Dated: September 13, 2007.
Florence E. Harmon,
 Deputy Secretary.
 [FR Doc. E7-18392 Filed 9-18-07; 8:45 am]

BILLING CODE 8010-01-P


Response to Comments Submitted to Docket but Not Addressed in Final Rule
to

Issue 9-month Stay of Grandfather Provision: 74 FR 48153, September 22,
2009

June 8, 2010

1. Comment: One commentor (Mirant) claims that the original
[administrative] stay that became effective on June 1, 2009 (see 74 Fed.
Reg. 26,098 (June 1, 2009)), is invalid because it responds to a
petition that was not authorized by statute (filed 151 days after
statutory deadline) and sought relief that is not available under
section 307(d) of the CAA.  In addition, the commentor claims that the
EPA could not subsequently extend that invalid stay.  Similarly, another
commentor (NEDA/CAP) states that EPA could not extend the 3-month stay
beyond the 3-month period provided for in CAA 307(d)(7)(B).

Response:  First, the original administrative stay that became effective
on June 1, 2009 expired in September 2009 and is not at issue in this
action to establish the current 9-month stay.  Thus, EPA does not need
to respond to this commentor’s claim that the original administrative
stay was invalid.

Second, the 9-month stay issued on September 22, 2009 at 74 FR 48,153,
is not an extension of the 3-month stay established under CAA
307(d)(7)(B) in the sense that the two stays combine to create a single
12-month stay.  Instead, the 9-month stay is a separate stay established
by a separate notice and comment rulemaking under the authority of CAA
301(a).  EPA understands that this confusion may have arisen because the
proposed 9-month stay described it as an “extension” ; however, the
authority identified as the basis for the proposed rule was CAA
301(a)--not CAA 307(d)(7)(B) which is the authority for the
administrative stay.  See 74 Fed. Reg. 36,427, 36,430 (July 23, 2009).
The final rule also identified CAA 301(a) as the statutory authority for
the 9-months stay, see 74 Fed. Reg. 48,153, 48,156 (Sept. 22, 2009), and
explained that use of the word ”extension“ and other forms of the
word ”extend“ was not intended to indicate that the 9-month stay was
extending the administrative stay beyond 3 months.  See 74 Fed. Reg. at
48,154 n. 2.  Finally, EPA notes that the 3-month stay expired on
September 1, 2009 (see 74 Fed. Reg. 26,098 (June 1, 2009), and the
9-month stay did not become effective until September 22, 2009 (see 74
Fed. Reg. 48,153 (Sept. 22, 2009).  This timing further confirms that
the two stays are separate actions.

2.  Comment: One commentor (Mirant) states that the stay has the effect
of imposing new requirements on regulated entities, and that EPA cannot
use an administrative stay to impose new requirements on permit
applicants. Instead, EPA must use notice and comment rulemaking, and it
has not done so.

Response: As noted above, the 9-month stay, which followed the original
administrative stay, is not based on the authority to establish an
administrative stay under CAA 307(d)(7)(B).  EPA used notice and comment
rulemaking to establish the 9-month stay.  See 74 Fed. Reg. 36,427(July
23, 2009) and 74 Fed. Reg. 48,153 (Sept. 22, 2009).  Further, we
disagree with the commentor’s premise here: that the stay of the
grandfather provision imposes new requirements.  Neither the PM10
surrogate policy nor the grandfather provision (when applied consistent
with the applicable case law and within the limits of the policy)
eliminates or reduces any requirements that must be met under the CAA.
Instead, the PM10 surrogate policy provides an alternative means of
demonstrating compliance with the applicable requirements.

3. Comment: One commentor (NEDA-CAP) says that the stay would create
confusion among regulated entities and others concerning the application
of (1) the PM10 surrogate policy in states with approved NSR SIPs, and
(2) the NSR transition period for condensable PM.  The commentor
requests that EPA clarify that this stay has no effect on these two
provisions.

Response:  We regret any confusion that may exist between the proposed
stay to end the grandfather provision for PM2.5 and the other two
proposed actions identified by the commentor.  The proposed action to
stay the grandfather provision for PM2.5 applies solely to the
implementation of PM2.5 in the federal PSD program.  The proposed stay
does not does not affect permit applications in SIP-approved states
where applicants and permitting authorities that are considering relying
on the PM10 Surrogate Policy in SIP-approved states are expected to
consider the case law that impacts the use of the PM10 Surrogate Policy,
and other limits in the use of the policy. See, e.g., 75 Fed. Reg. 6827,
6831-32 (Feb. 11, 2010). Further, EPA notes that it has proposed to end
early the PM10 Surrogate Policy in SIP-approved states.  See 75 Fed.
Reg. 6827, 6833-35.

Similarly, the stay of the grandfather provision does not effect the
transition period for condensable PM, but EPA notes that it has taken a
separate action to take comment on ending the NSR transition period for
condensable PM earlier than January 1, 2011.  See 74 Fed. Reg. 12,970,
12,976 (March 25, 2009).

4. Comment: Two commentors (Mirant and UARG) state that a 9-month stay
of the grandfather provision is inconsistent with § 165(c) of the Clean
Air Act, which provides that any completed PSD permit application be
granted or denied within one year after the date of filing of the
completed application.  UARG further states that EPA’s rules and
policies in effect at the time of their application allowed the
applicants to rely on the PM10 surrogate policy, and any change in that
policy is contrary to the requirement for prompt action under CAA
165(c).]

Response:   EPA does not dispute that some of the permit applications
that fell within the grandfather provision have not been granted or
denied within the one-year period provided in

§ 165(c) of the Act.  Commentors, however, have not shown that this
delay can be attributed to a stay of the grandfather provision.  For
example, even if the grandfather provision were not stayed with respect
to these pending applications, it is not clear that the applications
have provided the information or analysis necessary under the case law
to demonstrate that PM10 is a reasonable surrogate such that the
Surrogate Policy could be used.  See, e.g., discussion of case law in 75
Fed. Reg. 6827, 6831-32 (Feb. 11, 2010).  Finally, EPA notes that the
change that commentor refers to with respect to how the PM10 surrogate
policy is applied does not come from a change in the policy itself.
Instead, it comes from the court opinions that EPA must recognize as
governing EPA’s policy.

5.  Comment: One commentor (UARG) states that the proposed [second] stay
is unsupported and fails to provide adequate basis for public comment.
The commentor further claims that the proposed stay has the effect of
imposing requirements that would not otherwise apply; thus, the stay
changes rather than preserves the regulatory status quo and thus imposes
a “particularly heavy burden” on EPA to explain the basis for the
stay (UARG p.3)

Response:  First, in the proposed rule, we stated the basis on which we
were proposing to impose a further 9-month stay on the grandfather
provision: that the grandfather provision was adopted without prior
public notice and is not longer substantially justified in light of the
resolution of  the technical issues with respect to PM2.5 that led to
the PM10 surrogate policy in 1997, and that an additional nine months
would provide time for EPA to propose, take comment on, and issue a
final action on whether the grandfather provision should be repealed.
74 Fed. Reg. 36,427, 36,429 (col. 1) (July 23, 2009). To the extent that
this commentor or any other person believed that there were remaining
technical issues that required the continued use of the surrogate
policy, this was sufficient notice for them to identify any such
technical issues and explain why those issues should prevent the
proposed stay from being put in place. With respect to EPA’s statement
that the grandfather provision was adopted without public notice, EPA
notes that this same commentor provided its views on why there was
adequate public notice, demonstrating that EPA’s statement was
sufficient to put persons on notice of this issue.

Second, as noted above, we disagree with the commentor’s premise that
the stay of the grandfather provision has the effect of imposing new
requirements on sources that would be permitted to rely on the PM10
surrogate policy under the grandfather provision.  Neither the PM10
surrogate policy nor the grandfather provision (when applied consistent
with the applicable case law and within the limits of the policy)
eliminates or reduces any requirements that must be met under the CAA.
Instead, the PM10 surrogate policy provides an alternative means of
demonstrating compliance with the applicable requirements.

6. Comment: One commentor (UARG) states that the timing of the proposed
9-month stay would not allow sufficient time for EPA to take final
action on the 9-month stay before the end of the 3-month administrative
stay on September 1, 2009.

Response: This comment is founded on the premise that EPA would have to
finalize the 9-month stay before the end of the administrative stay on
September 1 to ensure that the second stay would be a legitimate
“extension” of the administrative stay.  In fact, the second stay
was not intended to extend the administrative stay, but instead to
establish a second, separate stay of the grandfather provisions.  EPA
did not finalize the 9-month stay until September 22.  See 74 Fed. Reg.
48,153 (Sept. 22, 2009).

7. Comment: One commentor (Mirant) states that EPA has misrepresented
the effects of the nine-month stay and presented arguments why the stay
would not apply to completed applications because the stay cannot have
retroactive effect.

Response: EPA does not agree with the commentor’s arguments concerning
the effect of the stay or its analysis concluding that the effect of the
stay would constitute a retroactive effect that is inconsistent with
case law or EPA regulations, but does not need to respond to these
arguments at this time. Whether or not the effect of the stay will be
consistent with the commentor’s arguments will be determined in
individual permitting decisions going forward for sources that had
originally been grandfathered.  With respect to the stay overall, EPA
has determined that the 9-month stay is appropriate regardless of
whether the commentor’s arguments on these points are correct or not,
for the reasons presented in response to other comments and in the final
rule preamble.  74 Fed. Reg. 48,153, 48,154 (Sept. 22, 2009).

8.  Comment: One commentor (UARG) states that a 9-month stay is
inconsistent with the argument that EPA made in opposing a motion to
stay the grandfather provision (among other parts of EPA’s May 2008
final rule) in NRDC v. EPA, No. 08-1250 (D.C. Cir.).

Response: EPA disagrees that its opposition to a court-ordered stay of
the grandfather provision is inconsistent with an agency stay of the
provision.  As EPA made clear, the issue on the motion to stay was
whether the Court should issue a stay that had the effect of rewriting
an agency rule by severing related provisions of the rule and allowing
some, but not others, to take effect.  EPA opposed such a court-ordered
stay on the basis of well-established case law finding that it is not
proper for courts to sever and stay a portion of an agency action if
there is substantial doubt that the agency would have adopted the
severed portion on its own.  That situation is different than the
circumstances here, where the agency (not the court) considers whether
one portion of the rule (the grandfather provision) should be stayed
while the other part of the rule (the decision to otherwise end the use
of the PM10 surrogate policy in federal program states) remains in
effect.

9.  Comment:  Two commenters claim that there is a lack of adequate
guidance to justify ending the use of the PM10 surrogate policy at this
time.  One commentor (Mirant ) states that with stay in place, there is
no guidance to review pending applications. There is no modeling
available to meet PM2.5 requirements.  The second commentor (UARG)
claims that EPA mentions resolution of technical issues but does not
explain this conclusion. This commentor believes that there is no
evidence that technical issues are resolved.  The commentor also states
that EPA gives no reason why the PM10 surrogate policy is no longer
appropriate (which was reaffirmed in 2005 and restated in our Sept. 2008
Opp. To Motion for Stay).

Response:  We believe that there is sufficient information available to
enable sources to estimate the ambient impacts of direct PM2.5 emissions
from stationary sources, and to a limited extent to account for ambient
levels of secondarily-formed PM2.5 as well.  In fact, some of the
sources affected by the stay have chosen to revise their analyses for
PM2.5 by addressing PM2.5 emissions in lieu of relying on the PM10
surrogate policy.  While the technical tools needed to complete a
comprehensive analysis of all emissions that contribute to ambient
concentrations of PM2.5 are only in the developmental stage; the use of
available tools is preferred over the continued use of the PM10
surrogate policy to satisfy the requirements for PM2.5.  Modeling of
direct PM2.5 emissions from stationary sources can be accomplished using
the same air quality model that is used for PM10.  Moreover, EPA is in
the process of developing procedures that will assist sources and
permitting authorities to carry out the required analyses for meeting
the PM2.5 requirements.  An initial outcome of this process is a
memorandum dated March 23, 2010, titled “Modeling Procedures for
Demonstrating Compliance with PM2.5 NAAQS,” which clarifies the
implications of the transition away from the PM10 surrogate policy, and
provides basic guidance that can be used by PSD applicants and
permitting authorities to assist in completing a PM2.5 ambient impact
analysis for PSD applications.

	With regard to commentor’s claim that EPA gave no reason why the PM10
surrogate policy was no longer appropriate, we have made it clear that
courts have issued various opinions that govern the use of PM10 as a
surrogate for meeting the PSD requirements for PM2.5.  For example,
courts have held that a surrogate may be used only after it has been
shown to be reasonable to do so, and this would include a discussion of
the differences between PM10 and PM2.5 and a demonstration that PM10 is
nonetheless an adequate surrogate for PM2.5.  Finally, the 1997
surrogate policy presumes that the necessary technical tools for
completing a PM2.5 analysis are not available.  Because we have
concluded that these technical issues have been sufficiently resolved,
we believe that any use of the surrogate policy should include a finding
that the technical tools needed for a PM2.5 analysis are not available,
thereby necessitating the use of a surrogacy approach.

10.  Comment:   One commenter (Mirant) seeks assurance from EPA that the
grandfather provision is still applicable to two permit applications for
the commentor’s facilities in Contra Costa County, California, which
were determined to be complete while the provision was in effect prior
to the issuance of the stay.   This commenter requests that EPA concur
that the grandfather provision remains applicable to two permit
applications pending before the Bay Area Air Quality Management Division
(BAAQMD), which administers a delegated PSD program.  The commenter
reasons that this result is achieved by virtue of a BAAQMD regulation
that EPA has approved into the SIP, which provides that a decision to
authorize construction shall be based on federal and state regulations
and standards in force on the date the application is declared to be
complete.

Response:   EPA has determined that the area in which the two permit
applications of concern are located is currently designated
“nonattainment” for PM2.5.  Hence, as long as the area continues to
be designated nonattainment when construction permits are issued to
these sources, the federal PSD permit requirements under 40 CFR 52.21 do
not apply to them, and so they are not impacted by the stay of the
grandfather provision.

	However, even if the area of concern was not designated as
nonattainment for PM2.5, EPA could not provide assurance to any proposed
source that the conditions allowed under the grandfather provision would
remain applicable under the circumstances described by the commenter.
While the stay of section 52.21(i)(1)(xi) remains in effect, the
grandfathering provision will not be applicable under federal law to a
final decision by BAAQMD to issue either of these PSD permits.
Permitting decisions are generally governed by the law in effect at the
time they are made.  See, In re: Dominion Energy Brayton Point, LLC, 12
E.A.D. 490, 614-616 (EAB 2006).   Even if the “regulations in force”
provision is applicable under state law (section 2-1-409 of BAAQMD
regulations), this provision cannot supercede or nullify the EPA
regulations at 40 CFR 52.21 that also apply and determine the
requirements of federal law for these pending PSD permit applications.
Although EPA has approved section 2-1-409 of BAAQMD regulations as part
of the State Implementation for Plan for certain purposes, BAAQMD does
not have an approved SIP that applies to PSD permitting.   As the
administrator of a delegated PSD permitting program under section
52.21(u), BAAQMD stands in the shoes of US EPA Region 9 and is required
to apply the provisions of 40 C.F.R. 52.21.   See, In re: West Suburban
Recycling and Energy Center, LP, 6 E.A.D. 692, 703-707 (EAB 1996).   The
commenter impermissibly equates BAAQMDs delegated PSD program with a
state PSD program that has been duly authorized by EPA as part of a
state SIP.   See, id. at 704. The applicable delegation agreement
between Region 9 and BAAQMD specifies that “[t]he District shall issue
PSD permits under this partial delegation agreement in accordance with
the PSD requirements of the District’s Regulation 2 – Rule 2 and 40
CFR 52.21, as amended on December 31, 2002.”   U.S. EPA – Bay Area
Air Quality Management District Agreement for Delegation of Authority to
Issue and Modify Prevention of Significant Deterioration Permits Subject
to 40 CFR 52.21 (Feb. 6, 2008). While the delegation agreement
references District Regulation 2, the agreement does not specify that
District Regulation 2 may supercede 40 CFR 52.21 in this or any other
circumstance.

 Mirant’s letter providing its comments on the proposed nine-month
stay began with a request that EPA state that the proposed nine-month
stay would not apply to the applications for Mirant’s two facilities
in Conta Costa County, California, and said that if EPA were to provide
such a statement then Mirant had no objection to the proposed nine-month
stay.  Because EPA is not providing the statement requested by Mirant,
it is responding to Mirant’s comments opposing the nine-month stay. A
response to Mirant’s argument that the stay does not apply to these
two facilities is provided below.

	 This inaccurate description of the 9-month stay as an extension of the
3-months stay appears elsewhere.  See Memorandum from Stephen D. Page,
Director, Office of Air Quality Planning and Standards, “Modeling
Procedures for Demonstrating Compliance with PM2.5 NAAQS” (March 23,
2010) at 2.

 PAGE

 PAGE   1


[Federal Register: December 4, 2009 (Volume 74, Number 232)]
[Rules and Regulations]
[Page 63592-63595]
[DOCID:fr04de09-18]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2009-0436; Directorate Identifier 2009-NM-005-AD;
Amendment 39-16114; AD 2009-24-20]
RIN 2120-AA64

Airworthiness Directives; Bombardier Model CL-600-2C10 (Regional
Jet Series 700 & 701) Airplanes and CL-600-2D24 (Regional Jet Series
900) Airplanes

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Final rule.

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

SUMMARY: We are adopting a new airworthiness directive (AD) for the
products listed above. This AD results from mandatory continuing
airworthiness information (MCAI) originated by an aviation authority of
another country to identify and correct an unsafe condition on an
aviation product. The MCAI describes the unsafe condition as:

    Frost, snow, slush or ice on the wing leading edges and upper
wing surfaces may change the stall speeds, stall characteristics and
the protection provided by the stall protection system, which could
result in reduced controllability of the aircraft.
* * * * *
We are issuing this AD to require actions to correct the unsafe
condition on these products.

DATES: This AD becomes effective January 8, 2010.
    The Director of the Federal Register approved the incorporation by
reference of certain publications listed in this AD as of January 8,
2010.

ADDRESSES: You may examine the AD docket on the Internet at http://
www.regulations.gov or in person at the U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Bruce Valentine, Aerospace Engineer,
Avionics and Flight Test Branch, ANE-172, FAA, New York Aircraft
Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New
York 11590; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
part 39 to include an AD that would apply to the specified products.
That NPRM was published in the Federal Register on May 12, 2009 (74 FR
22123). That NPRM proposed to correct an unsafe condition for the
specified products. The MCAI states:

    Frost, snow, slush or ice on the wing leading edges and upper
wing surfaces may change the stall speeds, stall characteristics and
the protection provided by the stall protection system, which could
result in reduced controllability of the aircraft.
    Transport Canada has * * * approved temporary revisions to the
Aircraft Flight Manuals (AFM), which emphasize the cold weather
operational requirements to ensure that the wing leading edges and
upper wing surfaces are free from frost, snow, slush or ice.

The corrective action is revising the AFMs to introduce procedures for
cold weather operations. You may obtain further information by
examining the MCAI in the AD docket.

Comments

    We gave the public the opportunity to participate in developing
this AD. We considered the comments received.

Request To Include Updated Temporary Revisions (TRs)

    Two commenters, Comair and Michael Donahue, request that we revise
paragraph (f) of the NPRM to require inclusion of the updated TRs in
the applicable AFM. The commenters both state that the TRs identified
in the NPRM have been updated.
    Comair states that Bombardier (Canadair) TR RJ 900/48-3, dated
August 19, 2008, to the Bombardier (Canadair) Regional Jet Series 900
AFM, CSP C-012, was superseded by Bombardier (Canadair) TR RJ 900/75,
dated November 20, 2008; which was superseded by Bombardier (Canadair)
TR RJ 900/75-1, dated November 20, 2008; which was superseded by
Bombardier (Canadair) TR RJ 900/75-2, dated April 22, 2009. Comair
states that Bombardier (Canadair) TR RJ 900/75-2 needs to be inserted
in the Bombardier (Canadair) Regional Jet Series 900 AFM, CSP C-012.
    Comair also states that Bombardier (Canadair) TR RJ 700/87-3, dated

August 19, 2008 (which was superseded by Bombardier (Canadair) TR RJ
700/107, dated November 20, 2008), to the Bombardier (Canadair)
Regional Jet Series 700 and 701 AFM, CSP B-012, was superseded by
Bombardier (Canadair) TR RJ 700/107-1, dated November 20, 2008; which
needs to be inserted in the Bombardier (Canadair) Regional Jet Series
700 and 701 AFM, CSP B-012.
    We agree that the latest TRs need to be included in the final rule.
The new TRs introduce a new ozone converter option code and revise the
applicability of the ozone concentration limitation. The new TRs do not
add any new requirements. Paragraph (f) of this AD has been updated
accordingly.

Updated Contact Information

    We have updated paragraph (g)(1) of this AD to provide the
appropriate contact information to use when submitting requests for
approval of an alternative method of compliance (AMOC).

Conclusion

    We reviewed the available data, including the comments received,
and determined that air safety and the public interest require adopting
the AD with the changes described previously. We determined that these
changes will not increase the economic burden on any operator or
increase the scope of the AD.

Differences Between This AD and the MCAI or Service Information

    We have reviewed the MCAI and related service information and, in
general, agree with their substance. But we might have found it
necessary to use different words from those in the MCAI to ensure the
AD is clear for U.S. operators and is enforceable. In making these
changes, we do not intend to differ substantively from the information
provided in the MCAI and related service information.
    We might also have required different actions in this AD from those
in the MCAI in order to follow our FAA policies. Any such differences
are highlighted in a NOTE within the AD.

Costs of Compliance

    We estimate that this AD will affect 336 products of U.S. registry.
We also estimate that it will take about 1 work-hour per product to
comply with the basic requirements of this AD. The average labor rate
is $80 per work-hour. Based on these figures, we estimate the cost of
this AD to the U.S. operators to be $26,880, or $80 per product.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this AD will not have federalism implications
under Executive Order 13132. This AD will not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
    For the reasons discussed above, I certify this AD:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979); and
    3. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
    We prepared a regulatory evaluation of the estimated costs to
comply with this AD and placed it in the AD docket.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://
www.regulations.gov; or in person at the Docket Operations office
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains the NPRM, the regulatory evaluation,
any comments received, and other information. The street address for
the Docket Operations office (telephone<PHONE_NUMBER>) is in the
ADDRESSES section. Comments will be available in the AD docket shortly
after receipt.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

0
Accordingly, under the authority delegated to me by the Administrator,
the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new AD:

2009-24-20 Bombardier, Inc. (Formerly Canadair): Amendment 39-16114.
Docket No. FAA-2009-0436; Directorate Identifier 2009-NM-005-AD.

Effective Date

    (a) This airworthiness directive (AD) becomes effective January
8, 2010.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to all Bombardier Model CL-600-2C10
(Regional Jet Series 700 and 701) airplanes and CL-600-2D24
(Regional Jet Series 900) airplanes, certificated in any category.

Subject

    (d) Air Transport Association (ATA) of America Code 57: Wings.

Reason

    (e) The mandatory continuing airworthiness information (MCAI)
states:

    Frost, snow, slush or ice on the wing leading edges and upper
wing surfaces may change the stall speeds, stall characteristics and
the protection provided by the stall protection system, which could
result in reduced controllability of the aircraft.
    Transport Canada has * * * approved temporary revisions to the
Aircraft Flight Manuals (AFM), which emphasize the cold weather
operational requirements to ensure that the wing leading edges and
upper wing surfaces are free from frost, snow, slush or ice.

The corrective action is revising the AFMs to introduce procedures
for cold weather operations.

Actions and Compliance

    (f) Unless already done, within 14 days after the effective date
of this AD, revise the Limitations--Operating Limitations section of
the Bombardier (Canadair) Regional Jet Series 900 Airplane Flight
Manual (AFM), CSP C-012; and the Bombardier (Canadair) Regional Jet
Series 700 and 701 AFM, CSP B-012; to include the information in the

Bombardier (Canadair) temporary revisions identified in Table 1 and
Table 2 of this AD, as applicable. For Model CL-600-2D24 (Regional
Jet Series 900) airplanes, include the information in any one of the
TRs in Table 1 of this AD; for Model CL-600-2C10 (Regional Jet
Series 700 and 701) airplanes, include the information in any one of
the TRs in Table 2 of this AD. These TRs introduce procedures for
cold weather operations to ensure that the wing leading edges and
upper wing surfaces are free from frost, snow, slush, and ice.
Operate the airplane according to the limitations and procedures in
the applicable TRs.

    Note 1:  This may be done by inserting a copy of the applicable
TR into the applicable AFM. When the TR has been included in general
revision of the applicable AFM, the general revision may be inserted
into the AFM, provided the relevant information in the general
revision is identical to the applicable AFM.

   Table 1--Temporary Revisions for Bombardier (Canadair) Regional Jet
                        Series 900 AFM, CSP C-012
------------------------------------------------------------------------
        Bombardier (Canadair) TR--                     Dated--
------------------------------------------------------------------------
RJ 900/48-3...............................  August 19, 2008.
RJ 900/75.................................  November 20, 2008.
RJ 900/75-1...............................  November 20, 2008.
RJ 900/75-2...............................  April 22, 2009.
------------------------------------------------------------------------

   Table 2--Temporary Revisions for Bombardier (Canadair) Regional Jet
                    Series 700 and 701 AFM, CSP B-012
------------------------------------------------------------------------
        Bombardier (Canadair) TR--                     Dated--
------------------------------------------------------------------------
RJ 700/87-3...............................  August 19, 2008.
RJ 700/107................................  November 20, 2008.
RJ 700/107-1..............................  November 20, 2008.
------------------------------------------------------------------------

FAA AD Differences

    Note 2:  This AD differs from the MCAI and/or service
information as follows: No differences.

Other FAA AD Provisions

    (g) The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager, New
York Aircraft Certification Office, ANE-170, FAA, has the authority
to approve AMOCs for this AD, if requested using the procedures
found in 14 CFR 39.19. Send information to ATTN: Program Manager,
Continuing Operational Safety, 1600 Stewart Avenue, Suite 41,
Westbury, New York 11590; telephone<PHONE_NUMBER>; fax (516) 794-
5531. Before using any approved AMOC on any airplane to which the
AMOC applies, notify your principal maintenance inspector (PMI) or
principal avionics inspector (PAI), as appropriate, or lacking a
principal inspector, your local Flight Standards District Office.
The AMOC approval letter must specifically reference this AD.
    (2) Airworthy Product: For any requirement in this AD to obtain
corrective actions from a manufacturer or other source, use these
actions if they are FAA-approved. Corrective actions are considered
FAA-approved if they are approved by the State of Design Authority
(or their delegated agent). You are required to assure the product
is airworthy before it is returned to service.
    (3) Reporting Requirements: For any reporting requirement in
this AD, under the provisions of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), the Office of Management and Budget (OMB) has
approved the information collection requirements and has assigned
OMB Control Number 2120-0056.

Related Information

    (h) Refer to MCAI Canadian Airworthiness Directive CF-2005-02
dated February 2, 2005; and the Bombardier (Canadair) TRs identified
in Tables 1 and 2 of this AD; for related information.

Material Incorporated by Reference

    (i) You must use the applicable service information contained in
Table 3 of this AD to do the actions required by this AD, unless the
AD specifies otherwise.
    (1) The Director of the Federal Register approved the
incorporation by reference of this service information under 5
U.S.C. 552(a) and 1 CFR part 51.
    (2) For service information identified in this AD, contact
Bombardier, Inc., 400 C[ocirc]te-Vertu Road West, Dorval,
Qu[eacute]bec H4S 1Y9, Canada; telephone<PHONE_NUMBER>; fax 514-855-
7401; e-mail<EMAIL_ADDRESS>Internet http://
www.bombardier.com.
    (3) You may review copies of the service information at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington. For information on the availability of this material at
the FAA, call<PHONE_NUMBER> or<PHONE_NUMBER>.
    (4) You may also review copies of the service information that
is incorporated by reference at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call<PHONE_NUMBER>, or go to: http://
www.archives.gov/federal_register/code_of_federal_regulations/
ibr_locations.html.

               Table 3--Material Incorporated by Reference
------------------------------------------------------------------------
     Bombardier (Canadair)
     temporary revision--            Dated--              To the--
------------------------------------------------------------------------
RJ 700/87-3...................  August 19, 2008..  Bombardier (Canadair)
                                                    Regional Jet Series
                                                    700 and 701 Aircraft
                                                    Flight Manual (AFM),
                                                    CSP B-012.
RJ 700/107....................  November 20, 2008  Bombardier (Canadair)
                                                    Regional Jet Series
                                                    700 and 701 AFM, CSP
                                                    B-012.
RJ 700/107-1..................  November 20, 2008  Bombardier (Canadair)
                                                    Regional Jet Series
                                                    700 and 701 AFM, CSP
                                                    B-012.
RJ 900/48-3...................  August 19, 2008..  Bombardier (Canadair)
                                                    Regional Jet Series
                                                    900 AFM, CSP C-012.
RJ 900/75.....................  November 20, 2008  Bombardier (Canadair)
                                                    Regional Jet Series
                                                    900 AFM, CSP C-012.
RJ 900/75-1...................  November 20, 2008  Bombardier (Canadair)
                                                    Regional Jet Series
                                                    900 AFM, CSP C-012.
RJ 900/75-2...................  April 22, 2009...  Bombardier (Canadair)
                                                    Regional Jet Series
                                                    900 AFM, CSP C-012.
------------------------------------------------------------------------

    Issued in Renton, Washington, on November 19, 2009.
Stephen P. Boyd,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. E9-28551 Filed 12-3-09; 8:45 am]

BILLING CODE 4910-13-P