The FAA has determined that notice and opportunity for prior public comment are unnecessary in accordance with 14 CFR 11.38, because the FAA has provided previous opportunities to comment on substantially identical special conditions and has fully considered and addressed all the substantive comments received. Based on a review of the comment history and the comment resolution, the FAA is satisfied that new comments are unlikely. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance. However, the FAA invites interested persons to participate in this rulemaking by submitting comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On May 3, 2003, Frederick A. Whitson, 7700 Ouray Road, Albuquerque, NM 87120, applied to the FAA, Fort Worth Special Certification Office, for a supplemental type certificate (STC) to modify certain Dassault Model Falcon 10 series airplanes. These airplanes are two-flightcrew, two-engine airplanes. The proposed modification incorporates the installation of an IS&S Digital Air Data System. This system replaces the equipment originally installed in these airplanes, which was not accurate enough for reduced vertical separation minimum (RVSM) requirements. The information presented by this equipment is flight critical. The IS&S Digital Air Data System to be installed in this airplane has the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Frederick A. Whitson must show that the modified Dassault Model Falcon 10 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A33EU, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.”

The regulations incorporated by reference in Type Certificate No. A33EU include 14 CFR part 25 dated February 1, 1964, including Amendments Nos. 25-1 through 25-20. Type Certificate A33EU was issued September 20, 1973.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25, as amended) do not contain adequate or appropriate safety standards for the modified Dassault Model Falcon 10 series airplanes, as modified by Frederick A. Whitson, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Dassault Model Falcon 10 series airplanes must comply with the fuel vent and exhaust emission requirement of 14 CFR part 34 and the noise certification requirement of part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should Frederick A. Whitson apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model.

The modified Falcon 10 will incorporate new avionics/electronics and electrical systems that will perform critical functions. These systems may be vulnerable to HIRF external to the airplane. The current airworthiness standards (14 CFR part 25) do not contain adequate or appropriate safety standards that address protecting this equipment from the adverse effects of HIRF. Accordingly, these instruments are considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Falcon 10. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, plus the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical digital avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths indicated in the following table for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Dassault Model Falcon 10 series airplanes modified by Frederick A. Whitson to include an IS&S Digital Air Data System. Should Frederick A. Whitson apply at a later date for a supplemental type certificate to modify any other model already included on Type Certificate No. A33EU to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of 14 CFR 21.101(a)(1).

This action affects only certain design features on the Dassault Model Falcon 10 series airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of the special conditions for these airplanes has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for Dassault Model Falcon 10 series airplanes modified by Frederick A. Whitson:

1. Protection From Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high intensity radiated fields external to the airplane.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

The FAA issued a final rule AD 2003-08-51, on June 3, 2003 (68 FR 39449, July 2, 2003). The following correction is needed:

The last P/N listed in paragraph (c) of the AD is incorrectly listed as 500P3500-70; the correct P/N is 500P3500-701. Therefore, the P/N needs correcting.

Since no other part of the regulatory information has been revised, the final rule is not being republished.

On Monday, May 5, 2003, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to create new Class E airspace upward from 700 ft. above the surface at Igiugig, AK (68 FR 23625). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new SIAPs for the Igiugig Airport. The new approaches are (1) Area Navigation-Global Positioning System (RNAV GPS) Runway 05 original, and (2) RNAV (GPS) Runway 23 original. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 of FAA Order 7400.9K, Airspace Designations and Reporting Points, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be revoked and revised subsequently in the Order.

This revision to 14 CFR part 71 establishes Class E airspace at Iguigig, Alaska. This additional Class E airspace is being created to accomodate aircraft executing new SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Igiugig Airport, Igiugig, Alaska.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On Monday, May 5, 2003, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to create new Class E airspace upward from 700 ft. above the surface at Nelson Lagoon, AK (68 FR 23626). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new SIAPs and one new DP for the Nelson Lagoon Airport. The new approaches are (1) Area Navigation-Global Positioning System (RNAV GPS) Runway 08 original, and (2) RNAV (GPS) Runway 26 original and the new DP is the Binal One RNAV Departure. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 of FAA Order 7400.9K, Airspace Designations and Reporting Points, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be revoked and revised subsequently in the Order.

This revision to 14 CFR part 71 establishes Class E airspace at Nelson Lagoon, Alaska. This additional Class E airspace is being created to accomodate aircraft executing new SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Nelson Lagoon Airport, Nelson Lagoon, Alaska.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On Monday, May 5, 2003, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to create new Class E airspace upward from 700 ft. above the surface at Pilot Point, AK (68 FR 23624). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new SIAPs and one new DP for the Pilot Point Airport. The new approaches are (1) Area Navigation-Global Positioning System (RNAV GPS) Runway 25 original, and (2) RNAV (GPS) Runway 07 original and the new DP is the Zilko One RNAV Departure. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 of FAA Order 7400.9K, Airspace Designations and Reporting Points, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be revoked and revised subsequently in the Order.

This revision to 14 CFR part 71 establishes Class E airspace at Pilot Point, Alaska. This additional Class E airspace is being created to accomodate aircraft executing new SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Pilot Point Airport, Pilot Point, Alaska.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The Rule was issued by the Commission in 1979, 44 FR 66466 (Nov. 19, 1979), in response to a directive in the Energy Policy and Conservation Act of 1975 (“EPCA”).1 The Rule covers several categories of major household appliances including dishwashers.

The Rule requires manufacturers of all covered appliances to disclose specific energy consumption or efficiency information (derived from the DOE test procedures) at the point of sale in the form of an “EnergyGuide” label and in catalogs. The Rule requires manufacturers to include, on labels and fact sheets, an energy consumption or efficiency figure and a “range of comparability.” This range shows the highest and lowest energy consumption or efficiencies for all comparable appliance models so consumers can compare the energy consumption or efficiency of other models (perhaps competing brands) similar to the labeled model. The Rule also requires manufacturers to include, on labels for some products, a secondary energy usage disclosure in the form of an estimated annual operating cost based on a specified DOE national average cost for the fuel the appliance uses.

Section 305.8(b) of the Rule requires manufacturers, after filing an initial report, to report certain information annually to the Commission by specified dates for each product type.2 These reports, which are to assist the Commission in preparing the ranges of comparability, contain the estimated annual energy consumption or energy efficiency ratings for the appliances derived from tests performed pursuant to the DOE test procedures. Because manufacturers regularly add new models to their lines, improve existing models, and drop others, the data base from which the ranges of comparability are calculated is constantly changing. To keep the required information on labels consistent with these changes, the Commission will publish new ranges if an analysis of the new information indicates that the upper or lower limits of the ranges have changed by more than 15%. Otherwise, the Commission will publish a statement that the prior ranges remain in effect for the next year.

The Commission has analyzed the annual data submissions for dishwashers. The data submissions show a significant change in the low and high ends of the range of comparability scale for standard models.3 Accordingly, the Commission is publishing a new range of comparability for standard dishwashers in Appendix C2 of the Rule. The range for compact dishwashers has not changed significantly. The new range of comparability for standard dishwashers supersedes the current range, which was published on July 19, 2002 (67 FR 47443). Manufacturers of these dishwashers must base the disclosures of estimated annual operating cost required at the bottom of EnergyGuide labels for standard-sized dishwashers on the 2003 Representative Average Unit Costs of Energy for electricity (8.41 cents per kiloWatt-hour) and natural gas (81.6 cents per therm) that were published by DOE on April 9, 2003 (68 FR 17361) and by the Commission on May 5, 2003 (68 FR 23584).

The annual submissions of data for central air conditioners and heat pumps have been made to the Commission. The ranges of comparability for central air conditioners and heat pumps have not changed by more than 15% from the current ranges for these products. Therefore, the current ranges for these products, which were published on September 16, 1996 (61 FR 48620), will remain in effect until further notice.

The Commission is amending the cost calculation formulas in Appendices H and I to Part 305 that manufacturers of central air conditioners and heat pumps must include on fact sheets and in directories to reflect this year's energy costs figures published by DOE. These routine amendments will become effective November 10, 2003.

The amendments published in this notice involve routine, technical and minor, or conforming changes to the labeling requirements in the Rule. These technical amendments merely provide a routine change to the range and cost information required on EnergyGuide labels and fact sheets. Accordingly, the Commission finds for good cause that public comment for these technical, procedural amendments is impractical and unnecessary (5 U.S.C. 553(b)(A)(B) and (d)).

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Appliance Labeling Rule. These technical amendments merely provide a routine change to the range information required on EnergyGuide labels. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments announced today will not have a significant economic impact on a substantial number of small entities.

In a June 13, 1988 notice (53 FR 22106), the Commission stated that the Rule contains disclosure and reporting requirements that constitute “information collection requirements” as defined by 5 CFR 1320.7(c), the regulation that implements the Paperwork Reduction Act.4 The Commission noted that the Rule had been reviewed and approved in 1984 by the Office of Management and Budget (“OMB”) and assigned OMB Control No. 3084-0068. OMB has reviewed the Rule and extended its approval for its recordkeeping and reporting requirements until September 30, 2004. The amendments now being adopted do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

The regulations of the Bureau of Customs and Border Protection (CBP), regarding information requested pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, are set forth in part 103 of Chapter I of Title 19 of the Code of Federal Regulations (19 CFR part 103). These regulations were the regulations of the former U.S. Customs Service (Customs). As a component of the Department of the Treasury, Customs supplemented its regulations with the Department of the Treasury regulations (found at 31 CFR part 1) regarding public access to records. Section 1.6 of the Department of the Treasury regulations (31 CFR 1.6) concerns the treatment of information denominated as “business information”. This section provides that such information provided to the Department of the Treasury by a “business submitter” shall not be disclosed pursuant to a FOIA request except in accordance with the provisions of the section. Part 103 of 19 CFR does not have a similar provision and Customs followed the Department of the Treasury's disclosure procedure set forth in 31 CFR 1.6 since it was promulgated in 1987.

Section 1.6 was promulgated in accordance with Executive Order 12600 of June 23, 1987, 52 FR 23781, 3 CFR part 1987, 235, 23 Weekly Comp.Pres. Doc. 727. Executive Order 12600 ordered the head of each Executive department to issue a predisclosure notification procedure for FOIA requests concerning confidential commercial information.

On March 1, 2003, Customs was transferred from the Treasury Department to the new Department of Homeland Security (DHS). Pub. L. 107-296, 6 U.S.C. 133, 116 Stat. 2135. DHS published procedures for the public on how to obtain information from DHS in an interim rule published in the Federal Register (68 FR 4055) on January 27, 2003. Under this rule, established at 6 CFR, Chapter I, part 5, the DHS FOIA provisions apply to all Department components transferred to the DHS, except to the extent that such component has adopted separate guidance under the FOIA (6 CFR 5.1(a)(2)).

The DHS FOIA regulation at 6 CFR 5.8(c) provides that a submitter of business information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under exemption 4 of the FOIA. (Exemption 4 of the FOIA protects trade secrets and commercial or financial information that is privileged or confidential.) The regulations go on to say that, before business information will be released, notice will be provided to business submitters whenever (1) a FOIA request is made that seeks the business information that has been designated in good-faith as confidential, or (2) the DHS component agency has reason to believe the information may be protected from disclosure. When notice is provided, the submitter will be required to submit a detailed written statement specifying the grounds for withholding any portion of the information and must show why the information is a trade secret or commercial or financial information that is privileged or confidential.

Customs, in accordance with the Treasury Regulations (31 CFR 1.6), had not required business submitters to designate information as protected from disclosure as privileged or confidential under exemption 4 of the FOIA for the agency to not disclose “commercial information”, defined as trade secret, commercial, or financial information obtained from a person. The Treasury regulations provide that a component of the Treasury Department can determine for itself that information it receives from business submitters will not be disclosed pursuant to a FOIA request. If the agency determines the information is confidential, it can protect the information as confidential without notifying the business submitter that a FOIA request has been received.

For example, Customs routinely considered commercial information appearing on entry documents as confidential and privileged under exemption 4 of the FOIA. Customs did not require business submitters to designate that information as confidential and did not require the business submitters to respond to a notice from Customs with a written detailed statement specifying the reasons for the claim of confidentiality.

Accordingly, CBP is issuing this document to assure the trading community that the transfer of Customs from Treasury to DHS will not affect the treatment of commercial information which business submitters provide to CBP. In this document CBP is amending its regulations on an interim basis to set forth the established policy it had been following pursuant to the Treasury regulations.

CBP is adding a new § 103.35 to its regulations to set forth its policy under the FOIA for the disclosure of confidential commercial information. The text will provide that “commercial information”, defined as “trade secret, commercial, or financial information obtained from a person”, that has been provided to CBP by a business submitter will be considered privileged or confidential and will not be disclosed except as provided in the section. This section will explain the various notice requirements CBP must give to the business submitter whose commercial information is the subject of a FOIA request for information, the procedure a business submitter must follow to object to the proposed disclosure, the notice of intent to disclose provisions that CBP must follow when it decides to disclose requested commercial information, and exceptions to the notice requirements. There is no affirmative requirement of business submitters to designate information as privileged or confidential.

It is noted that the new section does allow for a business submitter to designate information as confidential in § 103.35(b)(1)(i). Business submitters may avail themselves of this option when such a designation is feasible, as when submitting a ruling request. However, in situations when there is no method by which to designate information as confidential, such as on entry documentation, it is CBP's position that the commercial information will not be disclosed as a matter of policy. See § 103.35(b)(2)(i).

Before adopting these interim regulations as a final rule, consideration will be given to any written comments timely submitted to CBP, including comments on the clarity of this interim rule and how it may be made easier to understand. Comments submitted will be available for public inspection in accordance with the Freedom of Information Act (5 U.S.C. 552) and § 103.11(b) of the Title 19 of the Code of Federal Regulations (19 CFR 103.11(b)), on regular business days between the hours of 9 a.m. and 4:30 p.m. at the Regulations Branch, Office of Regulations and Rulings, Customs and Border Protection Bureau, 799 9th Street, NW., Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 572-8768.

CBP has determined, pursuant to 5 U.S.C 553(b)(B), that it would be contrary to the public interest to issue this rule with prior notice because the rule sets forth an established treatment of commercial information and seeks to assure the trade community that such submissions will continue to be treated the same by CBP in the Department of Homeland Security as the information was treated when Customs was under the Department of the Treasury. For these reasons, and pursuant to 5 U.S.C. 553(d)(3), good cause exists to make this rule effective immediately without a 30-day delayed effective date. However, as previously stated, CBP invites comments before determining whether to adopt these interim regulations as a final rule.

Because no notice of proposed rulemaking is required for interim regulations, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), do not apply. Further, this document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641), provides that a person must hold a valid customs broker's license and permit in order to transact customs business on behalf of others, sets forth standards for the issuance of broker's licenses and permits, provides for disciplinary action against brokers in the form of suspension or revocation of such licenses and permits or assessment of monetary penalties, and provides for the assessment of monetary penalties against other persons for conducting customs business without the required broker's license. Section 641 also provides for the issuance of rules and regulations relating to the customs business of brokers as may be necessary to protect importers and the revenue of the United States and to carry out the provisions of section 641.

The regulations issued under the authority of section 641 are set forth in part 111 of the Customs Regulations (19 CFR part 111). Part 111 includes detailed rules regarding the licensing of, and granting of permits to, persons desiring to transact customs business as customs brokers, including the qualifications required of applicants and the procedures for applying for licenses and permits. Part 111 also prescribes recordkeeping and other duties and responsibilities of brokers, sets forth in detail the grounds and procedures for the revocation or suspension of broker licenses and permits and for the assessment of monetary penalties, and sets forth fee payment requirements applicable to brokers under section 641 and 19 U.S.C. 58c(a)(7).

Section 111.1 of the Customs Regulations (19 CFR 111.1) sets forth definitions that apply for purposes of part 111 and includes the following definition of “customs business:”

Section 111.2 of the Customs Regulations (19 CFR 111.2) sets forth the basic rules regarding when a person (that is, an individual, partnership, association, or corporation) must obtain a customs broker license and permit. Paragraph (a)(2) of § 111.2 specifies several exceptions to the license requirement including, in subparagraph (i), an exception for an importer or exporter (and his authorized regular employees or officers acting only for him) transacting customs business solely on his own account and in no sense on behalf of another. Section 111.4 of the Customs Regulations (19 CFR 111.4) provides that any person who intentionally transacts customs business, other than as provided in § 111.2(a)(2), without holding a valid broker's license, will be liable for a monetary penalty for each such transaction as well as for each violation of any other provision of section 641.

The scope of “customs business” and the broker licensing requirement took on added importance as a result of the amendments made in 1993 by the Customs Modernization Act (the Mod Act) provisions of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057). Those Mod Act amendments included a revision of section 484 of the Tariff Act of 1930 (19 U.S.C. 1484) to, among other things, add a requirement that an importer of record exercise “reasonable care” in connection with the entry requirements under that section. In order to foster compliance with the customs laws and regulations under this added statutory responsibility, many importer groups consisting of a parent corporation and one or more subsidiary corporations chose to centralize their in-house customs experts into one corporate entity and to make the services of those experts available to the group as a whole.

However, when requested to issue an administrative ruling on the issue, the U.S. Customs Service (Customs, the predecessor agency to the current Bureau of Customs and Border Protection, referred to hereafter in this document as CBP) consistently took the position that many of the activities performed under this type of arrangement would involve the transaction of “customs business,” which would require a broker license under § 111.2(a)(1). This conclusion was based on the reasoning that (1) the parent corporation and each subsidiary corporation is a separate legal “person,” and (2) therefore, the parent or subsidiary corporation in which the customs expertise resides would be transacting customs business not solely on its own account as provided under § 111.2(a)(2)(i) but rather on behalf of another “person.”

Members of the trade community on a number of occasions had indicated to Customs that the result reached in the administrative rulings described above was unsatisfactory because it did not afford importers sufficient opportunity to address multiple related aspects of an individual customs transaction or groups of transactions. They believed that this was an impediment to their ensuring that reasonable care is exercised by all corporate affiliates for purposes of 19 U.S.C. 1484.

In response to the concerns expressed by the trade, Customs on October 15, 2002, published in the Federal Register (67 FR 63576) a notice setting forth proposed amendments to the Customs Regulations that would expand the permissible use of in-house experts by corporations and their affiliates to include activity that is intended to meet the corporation's “reasonable care” obligations under 19 U.S.C. 1484 and that would not fall within the definition of “customs business” in 19 U.S.C. 1641. The proposed amendments involved the addition of a new § 111.1 definition for the term “corporate compliance activity” to describe the permissible activities (and with a specific exclusion for document preparation and filing); the addition of language at the end of the existing § 111.1 definition of “customs business” stating that it does not include a corporate compliance activity; and the addition of a new paragraph (a)(2)(vii) to § 111.2 to clarify that a company performing a corporate compliance activity is not required to be licensed as a broker.

The October 15, 2002, notice invited the submission of public comments on the proposed regulatory changes, and the public comment period closed on December 16, 2002. A total of 28 commenters responded to the solicitation of comments in the notice. The comments submitted are summarized and responded to below.

Comment: The proposed amendments will benefit the importing community for several different reasons. For example, divisions and sister subsidiaries will be better able to meet the standards of reasonable care. Similarly, subsidiaries will be able to better leverage and benchmark best practices from within the parent company and subsidiaries, thereby improving the compliance activities of the entire corporation. Under the proposed rule, centralized corporate or affiliate groups can be more flexible in their ability to hire qualified people to provide common expertise for subsidiary companies that small divisions may not be able to afford or justify by themselves. The commenter provided a number of other examples of the beneficial aspects of this proposed rule.

Response: CBP agrees in principle with the general nature of these comments which reflect the purpose behind the regulatory proposal.

Comment: The goal of this proposal, which is to enable related companies to engage in corporate compliance activity on behalf of one another, could best be achieved through the modification or revocation of the rulings which created the controversy in the first place.

Response: CBP considered but rejected that option because a modification or revocation of those rulings might give rise to a false premise, that is, that the rulings were not legally correct when they were originally issued. To the extent that the rulings in question are inconsistent with the Part 111 texts as amended by this final rule document, those rulings will be considered to be modified or revoked without further action on the part of CBP—see § 177.12(d)(1)(vi) of the Customs Regulations (19 CFR 177.12(d)(1)(vi)) which was adopted in T.D. 02-49, published in the Federal Register (67 FR 53483) on August 16, 2002.

Comment: The proposed new definition of “corporate compliance activity” in § 111.1 is imprecise and will only create confusion. By seeming to allow all activities that do not involve the preparation or filing of documents, the proposed amendment raises concerns that other inter-corporate activities set forth in the definition of “customs business” will be allowed.

Response: CBP does not agree that the definition is imprecise and will create confusion. The commenter has correctly understood the effect of the proposed regulatory amendment, that is, that related companies will be permitted to conduct any activities mentioned in the definition of “customs business,” other than the actual preparation and filing of documents, so long as those activities fall within the definition of “corporate compliance activity.”

Comment: It is improper for CBP to include corporate compliance activities in 19 CFR 111.2(a)(2) as an exception to the requirement that a license is required, since it has already been made clear that these activities do not fall within the definition of “customs business.”

Response: On further consideration of this matter, CBP agrees with the point made by this commenter, because the definition of “customs business” in 19 CFR 111.1 is being amended specifically to exclude corporate compliance activity from customs business, making an exception to the license requirement redundant. Accordingly, the regulatory changes adopted in this final rule document do not include the addition of proposed new paragraph (a)(2)(vii) to § 111.2.

Comment: CBP needs to narrow the definition of “customs business” and broaden the definition of “corporate compliance activity.” Specifically, the latter definition should not exclude document preparation and filing.

Response: Document preparation is specifically mentioned as one of the activities falling within the statutory and regulatory meaning of “customs business.” The filing with CBP of those prepared documents is the logical next step and involves direct representations to the Government agency responsible for administering the matters to which those documents pertain. These considerations formed the basis for excluding document preparation and filing from the definition of “corporate compliance activity.” In defining “corporate compliance activity,” CBP endeavored to strike a balance between an importer's obligation to exercise reasonable care and the licensing requirements of 19 U.S.C. 1641. This balance is achieved by allowing related companies to provide advice while at the same time precluding them from preparing and filing documentation.

Comment: The prohibition against document preparation and filing should be lifted if steps are taken to ensure that the importer of record remains liable.

Response: By focusing on the liability of the importer of record, this comment appears to misconstrue CBP's primary focus in this matter, which was the customs broker statute and regulations. The exception regarding document preparation and filing by a related company was included in the definition of “corporate compliance activity” only in recognition of the explicit terms of 19 U.S.C. 1641 and not in order to suggest that an importer of record's liability would cease if the documents were prepared and filed by a related company. The legal obligations of importers of record, whether contractual under their bonds or otherwise imposed by other statutes or regulations, will remain undisturbed by this amendment to the customs broker regulations.

Comment: The regulations pertaining to “corporate compliance activity” should restrict document preparation and filing to those entry documents that are required to be filed under 19 U.S.C. 1484.

Response: CBP disagrees, because the document preparation and filing aspect of “customs business” extends to preparation and filing activities performed after the filing of the entry and entry summary. This rule is reflected in 19 CFR 111.2(b)(2)(i)(D), which provides that a broker who did not file the entry, but who is appointed by the importer of record to make written or oral representations to CBP after entry summary acceptance, must have a national permit if the broker does not have a district permit where the representations will be made.

Comment: While the proposed amendment will be beneficial both to the industry and to CBP, it does not make clear whether related parties can assist each other in responding to Customs Form 28 Requests for Information or Customs Form 29 Notices of Action, or in preparing or filing Post Entry Amendments, Supplementary Information Letters, documents relating to compliance audits or assessments, or certificates of origin.

Response: The prohibition against preparing and filing documents under the broker statute and regulations applies not just to the entry and entry summary, but to all other documents for which preparation and filing constitutes “customs business” or for which no explicit allowance is made by statute or regulation for preparation or filing by an “authorized agent.” Examples of documents for which there is an explicit allowance for action by an authorized agent are protests, ruling requests, and certain drawback documents. Since the proposed definition of “corporate compliance activity” contained no limitation or exception regarding the scope of document preparation and filing, the prohibition would apply to those specific examples mentioned by this commenter to the extent that they involve a customs business activity. However, a determination on whether a specific action constitutes a customs business activity can only be made on a case-by-case basis, for example through the binding ruling process.

Comment: Certain activities should be specifically authorized in the regulatory text (for example, classifying and valuing goods, providing advice on origin marking requirements, providing training to related companies, preparing responses to marking and penalty notices and prior disclosures, and representing companies before CBP in an audit). Alternatively, the definition of “corporate compliance activity” should be amended to include offering specific advice on the classification, valuation, or admissibility of merchandise.

Response: CBP does not believe that it would be advisable to include specific authorized activities within the regulations, because it would be impractical to list every conceivable activity that related companies may perform for each other. Listing some but not others would potentially create confusion or uncertainty as regards activities not listed. Some of the responses to comments in this final rule document may provide guidance on which activities are or are not permissible. For example, it has already been explained above that advisory activities will be allowed, while written communications with Customs in most circumstances would not be permitted. Importers with questions on a particular activity may request that the matter be resolved through the binding ruling process.

Comment: It is common for corporations to establish subsidiaries that have their own boards of directors and officers, but no employees. An example would be a sales or procurement subsidiary. In such cases, the parent may be preparing the subsidiary's documentation. The proposed regulations, with their restrictions on document preparation, are problematic in this regard.

Response: The preparation of documents under the corporate organizational scenario described by this commenter would constitute the performance of customs business in violation of the broker statute. Adoption of the proposed regulatory amendments would not alter that fact. The purpose of this rulemaking initiative is to facilitate the exercise of reasonable care, not to facilitate circumvention of the statutory obligation to seek the assistance of a licensed broker when a company, for its own business reasons, chooses not to have employees who can prepare and file documents with CBP.

Comment: CBP needs to further define what constitutes “preparation” within the context of a corporate compliance activity. Does the gathering and organization of information fall within the definition? Does it include the preparation of background documentation whose contents will be reflected on the entry?

Response: The proposed definition of “corporate compliance activity,” which precludes the “actual preparation or filing of the documents or their electronic equivalents,” in effect addresses the issue raised in this comment. The word “actual” is intended to emphasize that the documents in question are those that will be filed with CBP. Therefore, any work performed in anticipation of document preparation, including the gathering and organizing of information and its recordation on background paperwork, will be allowed under this provision.

Comment: It is unclear whether employees of a corporate compliance office will be able to discuss with CBP issues concerning a related company's import transactions.

Response: Discussions with CBP regarding import transactions may amount to the transaction of customs business given that the statutory definition of “customs business” includes “those activities involving transactions with the Customs Service * * *” However, CBP recognizes that preventing communication between corporate compliance offices and CBP would frustrate the primary purpose of such an office, that is, to provide accurate advice to the related company. In another example of making an accommodation between broker licensing and reasonable care requirements, CBP has determined that representatives of corporate compliance offices may communicate directly with CBP on behalf of related companies regarding the activities performed by the corporate compliance office to ensure that reasonable care was used in connection with preparation and filing of Customs documents. However, they should be prepared to demonstrate their authority to represent the interests of the related companies by presentation of a power of attorney or other letter of authorization.

Comment: It is unclear whether there would be a violation of the proposed rule if a corporate compliance office were to supply specific tariff information in writing to a related company. This needs to be clarified, as do questions arising over whether related companies can file ruling requests or protests on behalf of each other.

Response: No violation would occur if the compliance office were simply supplying the specific tariff information to the related company. The related company importer could then use the information to fill out the documentation to be filed with CBP, or turn it over to a broker for that purpose. On the issue of ruling requests and protests, 19 CFR 177.1(c) and 19 CFR 174.12(a)(6), respectively, permit an “authorized agent” to file those documents.

Comment: Please explain why companies that employ in-house customs brokers cannot provide advice, or prepare and file documents, on behalf of related companies. Such centralization would help to achieve high compliance rates.

Response: The broker statute makes provision for various types of broker's licenses: individual, corporate, association, or partnership. While the mere providing of advice to a related company may present no problem, if a corporation wishes to transact customs business (for example, prepare and file documents) for others, it must obtain a corporate license of its own. This requirement does not disappear simply because the corporation has a person on its payroll who is individually licensed, because the employee's licensed status does not confer a similar status on the employer. Furthermore, the actions of the employee performed during the regular course of his employment will be attributed to his employer, not to him individually. An analogy may be drawn to the situation in which an insurance company hires an attorney to work in its policy underwriting department: the employment of the attorney does not entitle the insurance company to practice law.

Comment: Most corporations with centralized customs compliance functions have put into place standard operating procedures (“SOPs”) for responding to CBP inquiries, submitting documents to CBP, and working with their various customs brokers. If CBP takes a strict approach to what constitutes the actual preparation and filing of documents, corporations will be forced to redesign their SOPs to limit their compliance activities. Such changes would probably include a restructuring of the corporation's relationship with its customs brokers to ensure that in-house customs compliance personnel only provide information to customs brokers and, perhaps, review any documents to be filed with CBP. Restricting the in-house compliance activities in this manner does not advance the policy goal of fostering reasonable care under the Mod Act.

Response: A reference to document “preparation” was added to the definition of “customs business” in the broker statute by section 648 of the Mod Act, and this statutory change has been in effect since December 8, 1993. The proposed regulatory changes at issue here did not attempt to impose a change in the meaning of document preparation. Moreover, as already pointed out in this comment discussion, the reference to “actual” preparation in the proposed regulatory text was intended to clarify that permissible corporate compliance activities include activities leading up to, but not in fact directly involving, document preparation. Therefore, to the extent that a corporation has been in compliance with the statutory standard since the adoption of the Mod Act amendment in 1993, the proposed regulatory amendments would not require any change in the corporation's SOPs as regards compliance activities.

Although the Mod Act amended 19 U.S.C. 1484 by imposing a reasonable care responsibility on importers of record, it did not eliminate or modify the requirement in 19 U.S.C. 1641 that a person have a broker's license to conduct customs business on behalf of others. The Mod Act also made no changes to the identity of the persons who, pursuant to 19 U.S.C. 1484, have the right to make entry. Those persons are the owner or purchaser of the imported merchandise, or a licensed broker who has been appointed by the owner, purchaser or consignee. Consequently, CBP in defining “corporate compliance activity” had to take into account the requirements of the broker and entry statutes. By proposing the addition of an explicit provision allowing related companies to have centralized compliance departments whose role would be advisory in nature, CBP attempted to strike a balance between an importer's reasonable care obligations and the proscription regarding the performance of customs business on behalf of others without a broker's license. It is the position of CBP that the proposed amendments are not restrictive in their effect and that they will foster compliance with importers' reasonable care obligations.

Comment: The development of the Automated Commercial Environment (ACE), and the possibility that future entries will be filed over the Internet, provides the perfect opportunity for CBP to look at changing practices. ACE will allow all parties to a customs transaction the ability to input information about the transaction. It is out of step for CBP to restrict these activities to independent customs brokers.

Response: The proposed regulations would enhance, not restrict, the ability of related companies (including those that have in-house brokers) to engage in certain activities that previously under the broker regulations were restricted to importers or their appointed brokers. The liberalization in the proposed regulatory changes had to stop at document preparation and filing in order to ensure the most appropriate balance between reasonable care obligations and the terms of the broker statute.

Comment: CBP has recognized that the effectiveness of its new security measures (for example, C-TPAT, Account Management, Importer Self-Assessment) are enhanced by corporate centralization of customs functions, yet the proposed rule limits the ability of companies to effectively centralize import operations.

Response: As stated throughout this comment discussion, both CBP and importers must operate within the confines of existing law. In this case due regard must be given to the entry and broker provisions of 19 U.S.C. 1484 and 1641. CBP believes that the proposed regulatory changes will enhance, rather than limit, the ability of related companies to centralize their import operations. To the extent that the proposed amendments may not go as far as the commenter would like, that is a function of the limits imposed by the statutory provisions in question.

Comment: As an alternative to the suggested changes, the definition of “person” in 19 CFR 111.1 could be changed so that the parenthetical phrase “(including subsidiaries and sister companies)” is added after the word “corporation.” With a definition such as this, corporations could conduct the same activities for subsidiaries as they do for themselves.

Response: CBP examined but rejected this approach when drafting the proposed regulations. Altering the definition of “person” in such a manner that subsidiaries are considered to be the same person as their parent would have consequences that go beyond the corporate compliance issue at hand. This is because the new definition will apply to everything that takes place under part 111 of the Customs Regulations, not just to corporate compliance activities. Since a person must obtain a license to conduct customs business as a broker, questions would inevitably arise whenever a parent or subsidiary corporation applied for a license. For example, would a license granted to a parent also cover its subsidiaries, since by definition they would be one and the same person? Or would a subsidiary even have the right to apply for a license in its own name, given that its identity had been subsumed into that of the parent? Furthermore, the legal separation between parent and subsidiary corporations is recognized elsewhere in the Customs Regulations, and thus the elimination of that separation from the broker regulations would not only create a legal inconsistency but would also have the potential to create confusion in other regulatory contexts.

Comment: A better approach would be to change the definition of “for one's own account” to clearly encompass the transaction of customs business on behalf of subsidiary companies. In this manner, the definition of “customs business” could remain unchanged, and it would be unnecessary to carve out limited exceptions when interpreting the definition.

Response: CBP also considered this option when formulating the regulatory proposals. However, for essentially the same reasons stated in the preceding comment response for not changing the definition of a “person,” CBP decided not to adopt this approach.

Comment: The proposed rule does not clarify the distinction between the assigning of a Harmonized Tariff Schedule number to inbound items for entry submission to CBP and the review of internal classification databases. The former is a part of the entry process, and is thus customs business, while the latter is merely a corporate compliance activity.

Response: While CBP agrees that the tariff classification of items to be entered may constitute a customs business activity depending on the context in which it is done, this regulatory initiative also recognizes that some accommodation must be made to enable companies to meet their reasonable care obligations. To this end, the proposed regulations would allow a compliance department to provide tariff classification advice to a sister or parent entity for all purposes, including advice regarding the assigning of tariff numbers for placement on an entry. However, that compliance department may not prepare the actual entry document.

Comment: The proposed definitions of eligible related parties are clear and do not create any particular problems.

Response: CBP agrees that the definitions are clear. However, as indicated later in this comment discussion, some adjustments to the proposed text are made in this final rule document in response to concerns raised in other comments.

Comment: CBP should replace the proposed related party definition with the related party standard employed for customs valuation purposes. One commenter specifically suggested that CBP should resort to the more limited related party definition as expressed in 19 U.S.C. 1401a(g)(1)(G).

Response: CBP believes that the related party definition used generally for valuation purposes is too broad for application in the context under review here. For example, the valuation definition includes relationships between family members. Its wholesale adoption would thus be inappropriate.

The narrower suggestion, that CBP use the more limited related party definition as set forth in 19 U.S.C. 1401a(g)(1)(G), is also unacceptable. That provision confers a relationship on “[t]wo or more persons directly or indirectly controlling, controlled by, or under common control with, any person.” According to a notice entitled “Transfer Pricing; Related Party Transactions” published in the Federal Register (58 FR 5445) on January 21, 1993, determinations of “control” must be made on a case by case basis within the context of the administrative review procedures available to the importing public under parts 174 and 177 of the Customs Regulations. The adoption of a definition that requires the issuance of a protest review decision or a ruling to determine if a party qualifies would be difficult to administer, and, as such, would not be appropriate in the present regulatory context.

Comment: As an alternative to the 50 percent ownership requirement, the rule should allow ownership of some equity or voting shares coupled with proof of the retention of substantive management rights, such as the right to designate officers or directors. Such a standard would take into account modern forms of corporate organization while also assuring that only those entities exerting control were engaged in permissible compliance activity.

Response: Receiving accurate information from importers is crucial to CBP's mission. The agency fosters accuracy through the issuance of informed compliance publications and binding rulings and by offering outreach programs to the importing community. It also makes use of the procedures that enable it to seek redress against persons who file inaccurate or incomplete entry documentation. Among its options in this regard, CBP can assess liquidated damages against an importer of record for a breach of the basic importation bond, or discipline licensed brokers pursuant to 19 U.S.C. 1641. Corporate compliance offices under this new regulatory scheme will not be subject to similar actions by CBP, because they will not be importers of record or, in most cases, licensed brokers. Absent some assurance of accountability, CBP would be reluctant to allow an unlicensed third party to participate in the entry process, because the accuracy of the information generated by that third party may be questionable. CBP, in imposing a substantial ownership standard (that is, more than 50 percent of the voting shares), seeks to establish what might be best described as cascading accountability by ensuring that entities offering compliance services are accountable to importers who are, in turn, accountable to CBP. Accordingly, the proposed standard is retained in the final rule. With regard to the point concerning modern forms of corporate organization, see the response to the next comment, which also discusses the replacement of the reference to “voting shares.”

Comment: The proposed definition of related parties only refers to voting shares of corporations and does not address other voting interests such as joint ventures, partnerships, limited partnerships, limited liability companies, or any other legal structure now or hereafter existing. Such situations should be considered, and all possible business entities should be addressed, by the regulations.

Response: Even though CBP believes that the 50 percent ownership standard should be retained as stated above, CBP also recognizes that in today's business environment relationships may be forged between companies that fall outside of the traditional corporate parent/subsidiary structure. Accordingly, in the regulatory text adopted in this final rule document, references to parent, subsidiary, and sister corporations are replaced with the more generic terms “business entity” and “related business entity or entities,” with “business entity” defined as “an entity that is registered or otherwise on record with an appropriate governmental authority for business licensing, taxation, or other legal purposes.” In addition, because voting shares are not the exclusive basis for determining the ownership level in a business, the references to “more than 50 percent of the voting shares” have been replaced in the final regulatory text with more general references to “more than a 50 percent ownership interest.”

Comment: CBP should adopt a regulation to allow those entities transacting customs business on behalf of related affiliates to certify to CBP, upon request, that the entity exercises “responsible supervision and control” over the affiliate's customs activity.

Response: CBP is uncertain as to the purpose behind this suggestion. The exercise of responsible supervision and control is a concept that applies to licensed customs brokers, upon whom that duty falls whenever they engage in customs brokerage activities. A broker can be sanctioned by CBP for failing to exercise responsible supervision and control. Since compliance departments will not be required to have broker licenses in cases covered by this new regulatory provision, the suggestion of this commenter does not appear to be relevant to the present exercise. For this reason, CBP declines to adopt the suggested certification procedure.

Based on the comments received and the analysis of those comments as set forth above, CBP believes that the proposed regulatory amendments should be adopted as a final rule with the changes discussed above.

This document does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866.

Pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), it is certified that the amendments will not have a significant economic impact on a substantial number of small entities. CBP believes that the amendments will have only a minimal impact on overall customs broker operations because they do not authorize the preparation of documents and the filing of documents with CBP, which constitute the bulk of customs business services provided by brokers. CBP also believes that the amendments will provide positive economic and related benefits to other members of the import community. Accordingly, the amendments are not subject to the regulatory analysis or other requirements of 5 U.S.C. 603 and 604.

The principal author of this document was Francis W. Foote, Office of Regulations and Rulings, Bureau of Customs and Border Protection. However, personnel from other offices participated in its development.

Prior to the September 11 terrorist attacks on the United States, Canadian and Mexican citizens living in their home countries, but traveling back and forth across the border to take part-time classes in the United States were admitted into the country as visitors. However, due to security concerns in the aftermath of the attacks, the Immigration and Naturalization Service (INS), now the Department of Homeland Security (DHS), stopped admitting these part-time students as DHS held that they were not eligible for admittance to the United States as visitors, since their purpose was to attend class. They also were not eligible for either F1 (academic) or M1 (non-academic or vocational) visas because these classifications require students to attend class on a full-time basis.

The “Border Commuter Student Act of 2002”, Public Law 107-274, creates new visa classifications for Canadian and Mexican citizens and residents who seek to commute to the United States for the purpose of full-time or part-time study at a DHS-approved school. These students (classified F3 and M3) are permitted to study on either a full-time or part-time basis. The family members of border commuter students are not entitled to derivative F2 or M2 status.

The rule amends the nonimmigrant visa classification table at 22 CFR 41.12 by adding new classifications: F3 and M3.

The implementation of this rule as a final rule is based upon the “good cause” exceptions established by 5 U.S.C. 553(b)(B) and 553(d)(3). The Department has determined that since the new nonimmigrant classifications became effective upon enactment of the Border Commuter Student Act of 2002 and since there is substantial immediate benefit to many aliens, there is not sufficient reason to delay its implementation. Additionally, this rule does not make changes in current policy with respect to the admission of border commuter students, but provides for a proper classification for such students. The Department has determined that adherence to the notice and comment period normally required under 5 U.C. 553(b) would cause disruption in the studies of these students.

Pursuant to section 605 of the Regulatory Flexibility Act, the Department has assessed the potential impact of this rule, and the Department of State hereby certifies that it is not expected to have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD07-03-131), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received. The Coast Guard may amend this temporary final rule based on comments received.

We did not publish a notice of proposed rulemaking (NRPM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM was impracticable and contrary to the public interest, because the rule was needed to allow the contractor to provide for worker safety while repairing the bridge. The repair work is required before the winter season when there will be increased boating and vehicular traffic in the area. Also, since the temporary rule provides for bridge openings during the majority of the day, during daytime hours when the area is most heavily traveled, vessel traffic will not be unduly disrupted during the repair process.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after Federal Register publication. Though the contractor submitted a letter on May 29, 2003, requesting a change to the bridge's operating schedule to effect repairs, that request was incorrectly addressed and did not reach the Bridge Branch until faxed there on July 7, 2003. The repair work to the bridge needs to be done before the busy winter season. Accordingly, there was insufficient time remaining to either publish an NPRM or delay the effective date of the rule. This temporary rule provides for a reduction in bridge openings so as to allow the contractor to safely repair the bridge while providing for the reasonable needs of navigation.

The Main Street Bridge, mile 24.7 at Jacksonville, Duval County, Florida, has a vertical clearance of 40 feet at mean high water and a horizontal clearance of 350 feet between the fender systems. The existing operating regulations in 33 CFR 117.325 require the bridge to open on signal except that, from 7 a.m. to 8:30 a.m. and 4:30 p.m. to 6 p.m., Monday through Saturday, except Federal holidays, the draw need not open for the passage of vessels. The draw opens at any time for vessels in an emergency involving life or property.

Royal Bridge, Inc., contractors notified the Coast Guard on July 7, 2003, that work on the vertical lift is scheduled from August 18, 2003, to October 30, 2003. For safety reasons, there will be a 5-foot reduction in vertical clearance. The contractors request that the bridge not open from 8 p.m. until 6 a.m. during the repair period. This temporary rule is necessary to provide for worker safety during repairs to the bridge and does not significantly hinder navigation, as openings will be provided throughout the remainder of the day.

Under this temporary rule, the bridge need not open from 8 p.m. until 6 a.m., August 18, 2003, to October 3, 2003. There will also be a reduction in vertical clearance of 5 feet. This action is necessary for worker safety during repairs to the bridge and does not significantly hinder navigation.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The temporary rule will impact vessels of greater than 35 feet in height because of the reduction in vertical clearance. The temporary rule, however, will only affect a small percentage of vessel traffic through the bridge, because it is not yet the winter season when there would be substantially greater use of the bridge.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this temporary rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this temporary rule would not have a significant economic impact on a substantial number of small entities, because the regulations will affect only a limited amount of marine traffic and will still provide for navigation needs by opening on signal from 6:01 a.m. to 7:59 p.m.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this temporary rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this temporary rule so that they can better evaluate its effects on them and comment if necessary. If this temporary rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in FOR FURTHER INFORMATION CONTACT.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in the preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a statement of Energy Effects under Executive Order 13211.

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event.

A temporary safety zone is necessary to ensure the safety of participants and spectators from the hazards associated with launching human powered flying machines. All persons and vessels shall comply with the directions of the Coast Guard Captain of the Port or the designated on-scene patrol representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Chicago or his designated on-scene representative and may be reached via VHF radio channel 16.

The safety zone will encompass all waters and adjacent shoreline of Lake Michigan beginning at a point of 41°52′56″N, 087°36′55″ W; then south to 41°52′54″ N, 087°36′55″ W; then east to 41°52′54″ N, 087°36′48″ W; then west to 41°52′56″ N, 087°36′48″ W. These coordinates are based upon North American Datum 1983 (NAD 1983).

This temporary rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule will have a significant impact on a substantial number of small businesses and not-for-profit organizations that are independently owned and operated are not dominant in their respective fields, and governmental jurisdictions with populations less than 50,000.

The Coast Guard certifies under section 605 (b) of the Regulatory Flexibility Act (5 U.S.C.601-612) that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

In accordance with Section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard offered to assist small entities in understanding this rule so that they can better evaluate its effectiveness and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions, call 1-888-REG-FAIR (1-888-734-3247).

This rule contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

The Coast Guard has analyzed this rule under Executive Order 13132, Federalism, and has determined that this rule does not have implications under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lC, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

(b) Enforcement period. This section will be enforced from 9:30 a.m. (local) until 7 p.m. (local) on August 9, 2003.

(c) Regulations. In accordance with § 165.23 of this part, entry into this zone is prohibited unless authorized by the Coast Guard Captain of the Port, Chicago, or the designated on scene representative. Section 165.23 also contains other general requirements.

The Coast Guard is implementing the permanent safety zones in 33 CFR 165.918(a)(13), (a)(8), (a)(10), and (a)(12) (68 FR 27466, May 20, 2003), for fireworks displays and other significant marine events in the Captain of the Port Chicago Zone during August 2003. The following safety zones are in effect for fireworks displays and other significant marine events occurring in the month of August 2003:

Navy Pier Summer Fireworks, Lake Michigan, Chicago, IL. This safety zone will be enforced every Wednesday and Saturday evening from 9 p.m. (local) until termination of the display.

Venetian Night Fireworks Monroe Street Harbor Chicago, IL. This safety zone will be enforced on August 2, 2003 from sunset until termination of the display.

YMCA Lake Michigan Swim Ferrysburg, MI. This safety zone will be enforced on August 16, 2003 from 8 a.m. (local) until the end of event.

Chicago River Flat Water Classic, Chicago River, Chicago, IL. This safety zone will be enforced on August 10, 2003 from 9 a.m. (local) until 3:30 p.m. (local).

In order to ensure the safety of spectators and transiting vessels, these safety zones will be in effect for the duration of the events. In cases where shipping is affected, commercial vessels may request permission from the Captain of the Port Chicago to transit the safety zone. Approval will be made on a case-by case basis. Requests must be made in advance and approved by the Captain of Port before transits will be authorized. The Captain of the Port may be contacted by calling (630) 986-2155.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally-enforceable SIP.

Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally-enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally-approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

In order to fulfill the requirements of Section 643.220 of the Revised Statutes of Missouri, the Missouri Department of Natural Resources (MDNR) proposed and adopted a new emissions banking and trading rule, 10 CSR 10-6.410. This rule became effective on April 30, 2003.

Banking and trading programs are a market-based approach to improving air quality. The basic unit for transactions in this program is the emission reduction credit (ERC), which is a certified, permanent emission reduction equal to one ton per year of a criteria pollutant or precursor. A facility generates ERCs by voluntarily emitting below applicable requirements. As this new, lower emission level is incorporated into the facility's operating permit, this reduction is permanent. These credits can be traded, sold, or banked for later use. Another facility can purchase these credits and use them to offset emissions from expansion of existing facilities or construction of new facilities. ERCs cannot be used to avoid New Source Review (NSR) applicability or requirements for technology-based standards such as lowest achievable emission rate, best available control technology or reasonably available control technology. Credits can also be purchased to be retired, thereby reducing potential emissions in an area.

Missouri's emissions banking and trading program contains a number of measures to ensure that air quality is protected. First of all, ERCs must be real, properly quantified, permanent and surplus (not already relied upon or required by the SIP, a state or local law, ordinance or regulation, the Clean Air Act or other Federal law or regulation, an enforcement action, or a consent decree). Second, ERCs may only be used in the same maintenance area, nonattainment area or modeling domain in which they were generated. ERCs may be used to offset only emissions of the same criteria pollutant or precursor as were reduced to generate them. For example, volatile organic compound (VOC) reductions may only be used to offset VOC emissions. If credits are to be used in an area subject to an offset ratio, enough credits must be purchased to compensate for emissions plus the area's offset ratio. These credits are permanently retired. Also, the available emissions credits in an area are reduced by an annual three per cent (3%) from the pool of banked credits. Finally, nothing in the rule is intended to limit the authority of the Missouri Air Conservation Commission to terminate or limit a facility's authorization to emit.

We note, in particular, that the new rule merely provides a mechanism for tracking ERCs. It does not in any way impact how ERCs may be used under rules such as Missouri's prevention of significant deterioration and nonattainment new source review programs (10 CSR 10-6.410(3)(B)5).

The management of the emissions banking and trading program will be handled by the Air Pollution Control Program (APCP) of the MDNR.

The offset and banking provisions of this rule were deleted since these provisions were incorporated into the new emissions banking and trading rule. Specifically, Appendix C, Offsets, and Appendix D, Banking, were deleted. Additionally, references to these appendices were deleted and references to the new banking and trading rule were added in sections (7)(B), (8)(C), and (8)(E). This revision became effective April 30, 2003.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are approving as an amendment to the Missouri SIP a revision to rule 10 CSR 10-6.060 and new rule 10 CSR 10-6.410, which were effective in the state on April 30, 2003.

We are processing this action as a final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number, MO 188-1188a, in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. 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.

a. Electronic mail. Comments may be sent by e-mail to kaiser.wayne@epa.gov. Please include identification number, MO 188-1188a, in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

b. Regulations.gov. Your use of Regulations.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, click on “To Search for Regulations,” then select Environmental Protection Agency and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

2. By Mail. Written comments should be sent to the name and address listed in the ADDRESSES section of this document.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 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. 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 10, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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).)

1. The Regional Office has established an official public rulemaking file available for inspection at the Regional Office. EPA has established an official public rulemaking file for this action under FL-078-200335. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 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, 9 to 3:30 excluding Federal holidays.

2. 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. Florida Department of Environmental Protection, Division of Air Resources Management, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400.

3. Electronic Access. You may access this Federal Register document electronically through the Regulation.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on Federal rules that have been published in the Federal Register, the Government's legal newspaper, and are open for comment.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking FL-078.” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. 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.

i. E-mail. Comments may be sent by electronic mail (e-mail) to laurita.matthew@epa.gov, please including the text “Public comment on proposed rulemaking FL-078.” in the subject line. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulation.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to Regulations.gov at http://www.regulations.gov, then select Environmental Protection Agency at the top of the page and use the go button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Section 2, directly below. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send your comments to: Matt Laurita, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Please include the text “Public comment on proposed rulemaking FL-078-200335.” in the subject line on the first page of your comment.

3. By Hand Delivery or Courier. Deliver your comments to: Matt Laurita, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division 12th floor, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 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, 9 to 3:30 excluding Federal holidays.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

The states, under section 110 of the Act, must develop air pollution regulations and control strategies to ensure that state air quality meets National Ambient Air Quality Standards (NAAQS) established by EPA. The Act, under section 109, established these NAAQS which currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must send these regulations and control strategies to EPA for approval and incorporation into the Federally enforceable SIP, which protects air quality and contains emission control plans for NAAQS nonattainment areas. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

The states must formally adopt the regulations and control strategies consistent with state and Federal laws for incorporating the state regulations into the Federally enforceable SIP. This process generally includes a public notice, public comment period, public hearing, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state will send these provisions to EPA for inclusion in the Federally enforceable SIP. EPA must then determine the appropriate Federal action, provide public notice, and request additional public comment on the action. The possible Federal actions include approval, disapproval, conditional approval and limited approval/disapproval. If adverse comments are received, EPA must consider and address the comments before taking final action.

EPA incorporates state regulations and supporting information (sent under section 110 of the Act) into the Federally approved SIP through the approval action. EPA maintains records of all such SIP actions in the CFR at Title 40, part 52, entitled “Approval and Promulgation of Implementation Plans.” The EPA does not reproduce the text of the Federally approved state regulations in the CFR. They are “incorporated by reference,” which means that the specific state regulation is cited in the CFR and is considered a part of the CFR the same as if the text were fully printed in the CFR.

Conformity first appeared as a requirement in the Act's 1977 amendments (Pub. L. 95-95). Although the Act did not define conformity, it stated that no Federal department could engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which did not conform to a SIP which has been approved or promulgated.

The 1990 Amendments to the Act expanded the scope and content of the conformity concept by defining conformity to a SIP. Section 176(c) of the Act defines conformity as conformity to the SIP's purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards. Also, the Act states “that no Federal activity will: (1) Cause or contribute to any new violation of any standard in any area, (2) increase the frequency or severity of any existing violation of any standard in any area, or (3) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area.” The requirements of section 176(c) of the Clean Air Act apply to all departments, agencies and instrumentalities of the Federal government. Transportation conformity refers only to the conformity of transportation plans, programs and projects that are funded or approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. Chapter 53).

A transportation conformity SIP is a plan which contains criteria and procedures for the State Department of Transportation (DOT), Metropolitan Planning Organizations (MPOs), and other state or local agencies to assess the conformity of transportation plans, programs and projects to ensure that they do not cause or contribute to new violations of a NAAQS in the area substantially affected by the project, increase the frequency or severity of existing violations of a standard in such area or delay timely attainment. 40 CFR part 51.390, subpart T requires states to submit a SIP that establishes criteria for conformity to EPA. 40 CFR part 93, subpart A, provides the criteria the SIP must meet to satisfy 40 CFR part 51.390.

EPA was required to issue criteria and procedures for determining conformity of transportation plans, programs, and projects to a SIP by section 176(c) of the Act. The Act also required the procedure to include a requirement that each state submit a revision to its SIP including conformity criteria and procedures. EPA published the first transportation conformity rule in the November 24, 1993, Federal Register (FR), and it was codified at 40 CFR part 51, subpart T and 40 CFR part 93, subpart A. The transportation conformity rule required the states to adopt and submit a transportation conformity SIP revision to the appropriate EPA Regional Office by November 25, 1994. The State of Florida submitted a transportation conformity SIP to the EPA Region 4 on November 15, 1994. EPA did not take action on this SIP because the Agency was in the process of revising the transportation conformity requirements. EPA revised the transportation conformity rule on August 7, 1995 (60 FR 40098), November 14, 1995 (60 FR 57179), and August 15, 1997 (62 FR 43780), and codified the revisions under 40 CFR part 51, subpart T and 40 CFR part 93, subpart A—Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. of the Federal Transit Laws (62 FR 43780). EPA's action of August 15, 1997, required the states to change their rules and submit a SIP revision to EPA by August 15, 1998.

States may choose to develop in place of regulations, a memorandum of agreement (MOA) which establishes the roles and procedures for transportation conformity. The MOA includes the detailed consultation procedures developed for that particular area. The MOAs are enforceable through the signature of all the transportation and air quality agencies, including the Federal Highway Administration (FHWA), Federal Transit Administration (FTA) and EPA.

The Federal or state transportation conformity rule applies to all NAAQS nonattainment and maintenance areas in the state. The MPO, the DOT (in absence of a MPO), State and local Air Quality Agencies , U.S. Environmental Protection Agency and U.S. Department of Transportation (USDOT) are involved in the process of making conformity determinations. Conformity determinations are made on programs and plans such as transportation improvement programs (TIP), transportation plans, and projects. The MPOs calculate the projected emissions that will result from implementation of the transportation plans and programs and compare those calculated emissions to the motor vehicle emissions budget established in the SIP. The calculated emissions must be equal to or smaller than the Federally approved motor vehicle emissions budget in order for USDOT to make a positive conformity determination with respect to the SIP.

The State of Florida chose to address the transportation conformity SIP requirements using State rules that incorporate by reference portions of the Federal conformity rule and a Memorandum of Agreement (MOA) that provides the procedures for interagency consultation. The Transportation conformity rule, part 93, section 105, requires the state to develop specific procedures for consultation, resolution of conflict and public consultation. On August 14, 1998, the State of Florida, through the Department of Environmental Protection (DEP), submitted the rules for transportation conformity. DEP gave notice of rule-making proceedings to the public on July 3, 1998, held a public hearing on August 5, 1998 and the rules were approved by the Department of Environmental Protection on August 6, 1998. These amendments to the Florida Administrative Code Rule Chapter 62-204.500, filed on August 12, 1998, became effective August 31, 1998.

EPA is approving the Florida transportation conformity rule submitted to the EPA Region 4 office on August 14, 1998, by the Secretary of the Florida Department of Environmental Protection with one exception. EPA amended 40 CFR part 93, section 104(e) in August 2002, changing the starting point for 18-month clock trigger for conformity from the date of the SIP submittal to the date of the motor vehicle emissions budget adequacy determination. This change was made after the State's public adoption process, and therefore the State has not adopted the most current version of 93.104(e). Therefore, EPA is not taking action on the portion of the Florida rule incorporating 93.104(e) by reference, and the Federal rule applies in its place. Refer to the August 6, 2002, final rule (67 FR 50808) for more details.

Furthermore, Florida's incorporation by reference of the conformity rule did not include portions of the regulations affected by the Federal court decision in Environmental Defense Fund v. Environmental Protection Agency, 167 F.3d 641 (DC Cir. 1999) and Sierra Club v. EPA, et. al., 129 F. 3d 137 (DC Cir. 1997). These include the following sections: 93.102(c)(1), 93.102(d), 93.118(e)(1), 93.120(a)(2), 93.121(a)(1) and 93.124(b). For all those portions not incorporated by reference, the Federal transportation conformity rule will take precedence.

EPA has evaluated this SIP revision and determined that the SIP requirements of the Federal transportation conformity rule, as described in 40 CFR part 51, subpart T and 40 CFR part 93, subpart A, have been met. Therefore, EPA is approving this revision to the Florida SIP.

EPA's rule requires the states to develop their own processes and procedures for interagency consultation among Federal, state, and local agencies and resolution of conflicts meeting the criteria of 40 CFR 93.105. The SIP revision must include the process and procedures to be followed by the MPOs, DOT, FHWA, FTA, local transit operators, the state and local air quality agencies and EPA before making conformity determinations. The transportation conformity SIP revision must also include processes and procedures for the state and local air quality agencies and EPA to coordinate the development of applicable SIPs with MPOs, state DOTs, FHWA and FTA.

The State of Florida developed its statewide consultation rule based on a Memorandum of Agreement (MOA) signed by Broward County, the Broward County MPO, FHWA-FL, FTA, Florida Department of Transportation, Florida Department of Environmental Protection, Hillsborough Area Regional Transit Authority, the Environmental Protection Commission of Hillsborough County, the Hillsborough County MPO, the MPO for the Jacksonville Urbanized Area, the City of Jacksonville, Miami-Dade County, the MPO of Palm Beach County, Palm Beach County, Pinellas County, the Pinellas County MPO, Pinellas Suncoast Transit Authority, the Tri-County Commuter Rail Authority, and the U.S. Environmental Protection Agency Region 4. The consultation process developed by the Florida Department of Environmental Protection is unique to the State of Florida and is enforceable, effective August 31, 1998.

EPA is approving the aforementioned changes to the Florida SIP, with the exception of the incorporation of reference to 40 CFR part 93.104(e) in 62-204.500 which requires the State to comply with outdated conformity rule trigger provisions, because the State adopted this regulation prior to EPA's rulemaking amendment on August 6, 2002.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal 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 adverse comments be filed. This rule will be effective October 10, 2003 without further notice unless the Agency receives adverse comments by September 10, 2003.

If the EPA receives such comments, then EPA will publish a document 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. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on October 10, 2003 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 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 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. 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. section 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 October 10, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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).)

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 October 10, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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).)

On March 29, 1996 and September 21, 2000, West Virginia submitted revisions to a regulation (45CSR2) to prevent and control particulate matter air pollution from combustion of fuel in indirect heat exchangers as formal revisions to its State Implementation Plan (SIP). The first SIP revision went to public hearing on November 29, 1994 and became effective on May 1, 1995. The second SIP revision went to public hearing on July 19, 1999 and became effective on August 31, 2000. These SIP revisions update definitions, clarify and streamline the opacity standards for visible emissions for soot blowing operations, streamline monitoring, reporting and recordkeeping requirements and provide for alternative limitations for visible emissions. Since the most recent of the two SIP revisions incorporates all of the changes from the earlier SIP revision, EPA will incorporate by reference the version of 45CSR2 submitted to EPA on September 21, 2000 into the SIP.

The following summary discusses the substantive revisions to West Virginia's regulation 45CSR2 since the SIP was revised on August 14, 1983. A detailed summary and discussion of all of the revisions are contained in a Technical Support Document (TSD) prepared for this rulemaking action and will not be restated here. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document.

(A) The following definitions were revised: (1) Definitions of “Commission”, “Ringelmann Smoke Chart”, and “Kanawha Valley Air Basin”, were deleted, (2) “Director” was modified to include persons delegated authority by the Director; (3) “Person” was modified to include the State of West Virginia and the United States, and (4) Definitions for “ASTM”, “Control Equipment”, “Discharge Point”, “Heat Input”, “Laboratory Official”, “ Malfunction”, “Normal Operation”, “Owner or Operator”, “Prefilter”, “Primary Filter”, “Probe”, “Sampling Plane”, “Shutdown”, “Start-up”, “Test Team Supervisor”, “Distillate Oil”, “Indirect Heat Exchanger”, “Natural Gas”, “Opacity”, “Process Heater”, “Residual Oil”, “Shipment”, “Wet Scrubber System” and “Wood” were added.

(B) In general, West Virginia made revisions to the visible emissions standard that substantially strengthened and clarified opacity limitations. Visible emissions from fuel burning units must be no greater than ten percent opacity on a six minute block average. An exemption from this standard is provided during soot blowing operations and fire box cleaning where a source can demonstrate that compliance cannot be practically achieved. In no event, however, may the opacity be greater than 30 percent for a total of six, six minute time periods in a calendar day. EPA interprets these exemption provisions to place the burden on the source to document that the exemption applies. Absent a formal determination from the Director that is based on information provided by the source, the exemption cannot be applied.

West Virginia's regulation 45CSR2 also provides a process for sources to request alternative visible emission standards where it is technologically or economically infeasible for the source to comply with the presumptive standard. In no event, however, may a fuel burning unit exceed 20 percent opacity. Section 110(a)(2)(A) of the Clean Air Act (CAA) requires SIPs to include federally enforceable emission limitations. West Virginia's provisions for alternative visible emission standards meets this requirement only to the extent that the regulation sets an upper limit on all alternative standards. However, the West Virginia Department of Environmental Protection (WVDEP) submitted a letter to EPA on March 19, 2003, clarifying that all alternative visible emission standards will be established as specific conditions of permits issued in accordance with federally enforceable permitting programs. The letter states that prior to issuing such permits, the WVDEP shall submit them to EPA for review. This letter has been included in the administrative record for this action and provides certainty of EPA review of alternative emission standards.

(C) The SIP revision substantially revises and enhances the testing, monitoring, recordkeeping and reporting requirements of 45CSR2. The regulation now requires that testing be conducted using EPA-approved methods and requires sources to submit monitoring plans for each emission unit that includes how emissions are to be measured, monitoring of pollution control equipment and parametric monitoring as appropriate. Sources using continuous opacity monitoring systems (COMS) presumptively meet the requirement for a monitoring plan.

The revised regulation also provides that excursions outside of the operating parameters associated with control equipment and established in a monitoring plan will not necessarily constitute a violation. On March 19, 2003, the WVDEP submitted a letter to EPA outlining the manner in which the State will implement 45CSR2, including this provision. It states that “WVDEP interprets this provision to mean that the source has the burden of proof in demonstrating that an excursion of an operating parameter is not a violation of the visible emission standards under section 3 of 45CSR2. Visible emissions monitoring plans involving primarily the recording of parametric data require visible emissions observations to be made and recorded when an excursion of any operating parameter exceeds one hour as detailed in interpretative rule 45CSR2A * * * Such opacity tests may be used to show that the parametric excursion did not result in opacity violations or may serve to verify that opacity violations actually occurred. WVDEP or EPA could enforce against the observed opacity violations in conjunction with the parametric excursion.” This letter is included in the administrative record for this rulemaking action.

(D) The revisions to West Virginia's regulation 45CSR2 include revised exemptions to the presumptive visible emissions standard during periods of start-up, shutdown, and malfunction. In order to qualify for an exemption during these periods, the source must demonstrate that the fuel burning unit and associated air pollution control equipment have been maintained and operated in a manner consistent with good air pollution control practices for minimizing emissions.

Generally, EPA requires that sources meet, without interruption, applicable limitations and control requirements. Where exemptions are allowed, the source must prove that an exemption applies and that the violation could not have been prevented. The Director may determine whether or not the exemption should be applied based on “information available to the Director”, which includes, but is not limited to monitoring results, visible emissions observations, review of operating and maintenance procedures and inspection of the source. Failure of a source to provide documentation that it has conducted maintenance operations in a manner consistent with good air pollution control practices should not prevent either the State or EPA from exercising its enforcement authority.

Specifically with respect to the malfunction exemption, EPA interprets West Virginia's regulation to mean that the source has the burden to prove that the malfunction was caused by circumstances beyond the control of the source and that it could not have been prevented through the installation of proper control equipment or proper operation and maintenance. Furthermore, the source must be able to demonstrate that the malfunction was not the result of an activity that could have been foreseen and avoided. With respect to high opacity measurements during start-up and shutdown operations, the source has the same burden to prove that the violation could not have been avoided through installation of the proper control equipment or proper operation and maintenance. For all exemptions claimed by a source, the WVDEP and EPA each have the authority to determine whether or not an exemption applies under a SIP approved regulation.

West Virginia's regulation 45CSR2 also states that a malfunction constitutes an affirmative defense for any action brought for noncompliance with the weight emissions standard (particulate matter standard) if the owner/operator can demonstrate that it has met the requirement to maintain and operate the fuel burning unit(s), including associated air pollution control equipment, in a manner consistent with good air pollution control practices for minimizing emissions. Although this provision does not exempt fuel burning units from the particulate matter standard during a malfunction, it does attempt to define the State's enforcement discretion when a malfunction occurs. EPA agrees that enforcement discretion may be appropriate for events such as a malfunction, where EPA concurs that a malfunction has occurred. However, EPA's approval of this rule as a SIP revision does not constitute advance approval of any exemptions, including malfunctions, or advance enforcement discretion which may be claimed under West Virginia's regulations. EPA may take independent enforcement action to the extent allowed by section 113 of the CAA and any other applicable provisions of the CAA, notwithstanding the issuance of an exemption or the exercise of enforcement authority by the State.

(E) Variances from the visible emissions standards are provided by West Virginia's regulation 45CSR2 in the event of unavoidable fuel shortages of fuel having the characteristics needed to comply with the visible emissions standards, for emergency situations that pose a threat to public health and welfare and to fuel burning units that use a flue gas desulphurization system when the latter system must be bypassed for planned or unplanned maintenance. The variance is limited in that it sets an alternative limit on opacity and, in the case of emergency situations, requires a demonstration that the particulate matter standards are not exceeded.

(F) A new section titled “Inconsistency Between Rules” allows the Director to determine applicability of conflicting rules based on imposing the more stringent provisions.

These revisions strengthen the SIP by clarifying and updating definitions and updating opacity standards. The revisions also require EPA review of alternative emission limits and establish acceptable periods when emission standards do not apply.

EPA is approving the revisions to 45CSR2, “To Prevent and Control Particulate Air Pollution from Combustion of Fuel in Direct Heat Exchangers”, submitted by West Virginia on September 21, 2000. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 10, 2003 without further notice unless EPA receives adverse comment by September 10, 2003. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. 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.

You may submit comments either electronically or by mail. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number WV041/046-6015a in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket. 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.

i. E-mail. Comments may be sent by electronic mail (e-mail) to morris.makeba@epa.gov, attention WV041/046-6015a. EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly without going through Regulations.gov , EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket.

ii. Regulations.gov. Your use of Regulation.gov is an alternative method of submitting electronic comments to EPA. Go directly to http://www.regulations.gov, then select “Environmental Protection Agency” at the top of the page and use the “go” button. The list of current EPA actions available for comment will be listed. Please follow the online instructions for submitting comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the ADDRESSES section of this document. These electronic submissions will be accepted in WordPerfect, Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Written comments should be addressed to the EPA Regional office listed in the ADDRESSES section of this document.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at the EPA Regional Office, as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in the official public rulemaking file. The entire printed comment, including the copyrighted material, will be available at the Regional Office for public inspection.

Do not submit information that you consider to be CBI electronically to EPA. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the official public regional rulemaking file. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public file and available for public inspection without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate regional file/rulemaking identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 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 rule 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 October 10, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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, to approve West Virginia's Regulation 45CSR2, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The following table of contents describes the format for the SUPPLEMENTARY INFORMATION section:

EPA is approving revisions to New Jersey's ozone SIP submitted on January 21, 1998, June 12, 1998 and April 26, 1999. Seven specific sources are addressed in these SIP revisions. New Jersey revised and submitted these revisions in response to a Clean Air Act (CAA) requirement that States require Reasonably Available Control Technology (RACT) at all major stationary sources of NOX. The seven sources addressed are: American Ref-Fuel Company/Essex County Resource Recovery Facility; Co-Steel Corporation of Sayreville (formerly New Jersey Steel Corporation); Co-Steel Raritan Corporation; Homasote Company; Milford Power Limited Partnership; University of Medicine and Dentistry of Newark, and Roche Vitamins, Inc.

Additionally, on February 21, 2001, in a letter to EPA, New Jersey indicated that with regard to the Township of Wayne, in accordance with a previously submitted and approved SIP revision the State had changed the permitted NOX limit to a more stringent limit. The previously approved SIP revision for this source indicated that the emission limits may be revised to reflect results from required stack testing. The permit required tests had been completed and New Jersey has established a new, more stringent emission limit based upon the results of these tests. This new limit is also being incorporated into the SIP.

This action includes a summary of each RACT submittal. These summaries are organized into four groups as follows:

A. “Facility-Specific NOX Emission Limits” for four major NOX facilities that contain a source operation or item of equipment for which New Jersey has not established an emission limit pursuant to Subchapter 19,

B. “Alternative NOX Emission Limits” for two major NOX facilities that contain a source operation or item of equipment of a category listed in section 19.2 for which an owner or operator seeks approval of a RACT emission limit that is different from the one established in Subchapter 19,

C. “Phased Compliance Through Repowering” for one major NOX facility for which an owner or operator seeks approval, pursuant to section 19.21, for a plan for phased compliance through repowering of a specific source, and

D. “Revised Facility-Specific NOX Emission Limits” for one major NOX facility for which permit conditions are revised in accordance with a previously submitted and EPA approved source-specific SIP revision which allowed for revisions based on the results of compliance tests.

The American Ref-Fuel Company owns and operates three mass burning water wall incinerators at the Essex County Resource Recovery Facility located at Newark, Essex County. The State's June 1998 SIP submittal is a revision to a May 1995 SIP revision for the same facility that was approved by EPA on January 17, 1997 (62 FR 2581). The EPA previously approved RACT controls at this facility that include Selective Non Catalytic Reduction (SNCR) technology with ammonia injection, based on a 1989 Best Available Control Technology (BACT) analysis. EPA's January 1997 approval included a facility-specific NOX emission limit of 95 pounds per hour (lbs/hr) per unit, with a concentration limit of 174 parts per million (ppm), based on a three hour average. In the June 1998 SIP revision, the facility's RACT analysis concluded, and New Jersey agreed, that the new facility-specific NOX emission limit is 155 ppm, based on a twenty-four hour average, while maintaining the 95 lbs/hr/unit limit based on a three hour average.

Co-Steel Corporation owns and operates a mini steel mill, located at Sayreville, Middlesex County, that has the capability of producing 800,000 tons per year (tpy) of steel billets. The facility includes an electric arc furnace (EAF) that melts and refines scrap steel in a continuous mode of operation, and a billet reheat furnace (BRF) that reheats steel billets for producing reinforcing bars for the construction industry. The facility's RACT analysis concluded, and New Jersey agreed, that there are no control technologies available to control NOX emissions from EAF's and the State established an emission limit based on engineering judgement. Subsequent to New Jersey's SIP submittal which EPA is acting on today, and based on actual stack emission testing, the State lowered the NOX emission limit from 168 tpy to 78.8 tpy.

In addition, since February 2003, the State has been reviewing a new Prevention of Significant Deterioration (PSD) permit application for the EAF which may slightly increase the NOX emission limit above the current 78.8 tpy State limit. The 78.8 tpy limit has not been submitted as a SIP revision. CSS submitted this new PSD application because it plans to increase production at the EAF. The State hopes to complete, within approximately a year, its review and public notice and comment period.

This SIP revision includes the original NOX emission limit of 168 tpy. On the effective date of this SIP approval it will become the federally enforceable NOX SIP limit. In order for the current State permit limit to become the federally enforceable NOX limit, or for any future State permit limit to become the federally enforceable NOX limit, it must be submitted and EPA must approve of it as a SIP revision.

It should be noted that while any aspect of a State permit limit is federally enforceable because it is part of a permit which is issued under the federally approved State permit program, it is not the federally enforceable NOX SIP limit required to satisfy the SIP. A federally enforceable permit condition can be made more or less stringent in accordance with State permitting procedures. However once a permit condition is submitted and approved of as a SIP emission limit, in accordance with sections 110(l) and 116 1 of the CAA, it can not be made more or less stringent than the federally approved limit unless it is submitted and approved by EPA as a SIP revision, or unless the approved SIP establishes procedures which allow for making the limit more stringent.

Furthermore, if the PSD permit limit revision is considered “major” then the Title V permit must also be revised at the same time as the PSD revision. However, if the PSD permit limit revision is considered “minor” then the Title V permit revision may be revised at the next scheduled cycle.

NOX emissions from the BRF are produced primarily from natural gas fired burners with oil as the backup fuel. The facility's RACT analysis concluded, and New Jersey agreed, that RACT is conversion of the existing four North American Manufacturing Twin Bed burners with low NOX burners and staged fuel injection. The new facility-specific NOX emission limit is 169.5 tpy or 0.27 pounds per million BTU (lb/mmBTU) heat input, as verified by annual stack tests. Additionally, the State's Conditions of Approval include: (1) Annual adjustment of the combustion process according to Subchapter 19.16; and (2) use of natural gas as the primary fuel with Number 2 fuel oil as a standby fuel to be used only during natural gas curtailment and up to a maximum of 1000 hours of operation in any one calendar year.

Co-Steel Raritan Corporation owns and operates a mini steel mill, located at Perth Amboy, Middlesex County, that has the capability of producing 1,160,320 tpy of finished product. The facility includes an electric arc furnace with laddle metallurgy system (EAF/LMS) that melts and refines scrap steel in a batch mode of operation, and a billet reheat furnace (BRF) that reheats steel rods for producing finished product.

The facility's RACT analysis concluded, and New Jersey agreed, that there are no technologies available to control NOX emissions from EAF's. The facility-specific NOX emission limit for the EAF/LMS is 94 tpy as verified by annual stack tests and was State effective on March 6, 1998. Additionally, the State Conditions of Approval include: (1) The maximum steel scrap feed rate to the EAF shall not exceed 148 tons per hour based on 24-hour daily production; and (2) operation of the EAF steel making process limited to 7840 hours in a year period.

NOX emissions from the BRF are produced from natural gas fired burners. The facility's RACT analysis concluded, and New Jersey agreed, that RACT is conversion of the existing three North American Manufacturing burner zones with low NOX burners (LNB) and flue gas recirculation (FGR). The facility-specific NOX emission limit for the BRF is 80 tpy or 0.145 lb/mmBTU, as verified by annual stack tests. Additionally, the State Conditions of Approval include: (1) The burners in all three zones of the furnace are to be replaced with LNB and FGR; (2) annual adjustment of the combustion process according to Subchapter 19.16; (3) implementation of the proposed NOX plan by February 1, 2001; and (4) operation limited to using natural gas as fuel for the burners.

Note that this source-specific SIP revision addresses what the State approved RACT is for the EAF as of March 6, 1998 and for the BRF as of February 1, 2001, since these are the effective dates for the NOX RACT requirements for those sources in the State approved NOX Control Plan. Final EPA approval will make them federally enforceable.

Homasote owns and operates a fibre board manufacturing operation located at West Trenton, Mercer County. The facility includes a custom designed eight tier conveyor type natural gas dryer that replaced two oil or gas fired dryers that were dismantled. Replacement of the two dryers with the natural gas dryer is expected to reduce NOX emissions by nearly 67 tons annually. The facility's RACT analysis concluded, and New Jersey agreed, that the custom design of the natural gas dryer equipment makes the addition of the generally required control technologies infeasible. The facility-specific NOX emission limit is 0.10 lb/mmBTU, as verified by compliance stack tests. Additionally, the State's Conditions of Approval include: (1) Annual adjustment of the combustion process pursuant to Subchapter 19; (2) limitation of the amount of wet boards passing through the dryer to not more than 17,000 lb/hr; (3) limitation of the amount of natural gas used in the dryer to not more than 284 million cubic feet per year; and (4) limitation of the amount of propane used as secondary fuel in the dryer to not more than 310,000 gallons per year. Compliance with these additional conditions of approval in the State's SIP revision are to be documented by record keeping.

Milford Power operates a combined cycle cogeneration plant at the Crown Vantage Milford Mill in Milford Township, Hunterdon County. Steam and dry low NOX combustors are used to comply with Subchapter 19's NOX RACT emission limit during periods of normal operation, however steam is not available or cannot otherwise be used during start-up, shutdown and fuel transfer. The facility's RACT analysis concluded, and New Jersey agreed, that dry low NOX combustors without steam addition had been demonstrated to be RACT for the cogeneration plant during start-up, shutdown and fuel transfer periods. The alternative NOX emission limits are 0.34 lb/mmBTU during periods of start-up and shutdown and 0.73 lb/mmBTU during fuel transfer periods. Additionally, the State's Conditions of Approval include: (1) Maximum number of start-ups and shutdowns shall not exceed 75 events of each type per calendar year; (2) maximum number of fuel transfers shall not exceed 10 events per calendar year; and (3) the facility shall maintain records of all start-up, shutdown and fuel transfer events.

NOX emissions at the University of Medicine and Dentistry, located at Newark, Essex County, are from three cogeneration units and three non-utility boilers. The facility operates three identical cogeneration units that include Solar Centaur combustion turbines each with a supplementary fired duct burner to provide electricity and steam to its campus. The plant uses natural gas as the primary fuel and number 2 fuel oil as backup. The facility's RACT analysis determined, and New Jersey agreed, that increased water injection to the turbine has been determined to be RACT for the cogeneration units. The alternative NOX emission limit is 0.167 lb/mmBTU, averaged over any calendar day using Continuous Emission Monitoring System (CEMs), when combusting natural gas. For combustion of number 2 fuel oil, New Jersey lowered the permitted NOX emission limit from 0.40 lb/mmBTU to 0.35 lb/mmBTU which is the presumptive limit established in Subchapter 19.

The facility also operates three Cleaver Brooks non-utility boilers to provide steam to its Newark campus. The boilers only operate during periods of high demand (peaking units) or during periods of interruption of the three cogeneration units, which are the primary source of steam. The facility's RACT analysis concluded, and New Jersey agreed, that due to the low capacity factor and remaining useful life of only seven years, there are no technologies that are economically feasible to control NOX emissions from the three boilers. The alternative NOX emission limit is 0.55 lb/mmBTU when combusting either natural gas or number 6 fuel oil for each boiler. Additionally, the State's Conditions of Approval include: (1) Annually adjusting the combustion process pursuant to Subchapter 19; (2) stack testing in accordance with Subchapter 19 for determining compliance; (3) operating each boiler no more than 2920 hours in any calendar year; and (4) complying with Subchapter 19's NOX emission limit of 0.28 lb/mmBTU by June 1, 2002 and thereafter, should the three non-utility boilers continue to operate beyond May 31, 2002.

Roche Vitamins, Inc. operates a powerhouse facility in Belvidere, Warren County, which includes the following: a packaged water tube steam boiler with a rated heat input of 84.4 mmBTU/hr (Boiler No. 1), and a cogeneration system consisting of one 21.5 Megawatt diesel reciprocating engine and a heat recovery steam generator (HRSG) equipped with a 179 mmBTU/hr duct burner (Boiler No. 6). Roche Vitamins, Inc. proposed a repowering plan in which it committed to replace Boiler No.1 and the cogeneration unit with a new cogeneration unit consisting of a new gas turbine and a new HRSG. New Jersey estimates that after repowering, NOX emissions from the facility will be reduced by nearly 2023 tons annually. The repowering plan as approved by the State requires the following: (1) The new cogeneration unit to comply with state of the art requirements; (2) the new cogeneration unit be installed in accordance with the milestones specified in a federally enforceable agreement; (3) the repowering be completed by May 1, 1999; (4) fuel restrictions apply to Boiler Nos. 1 and 6 and to the diesel engine; (5) after May 1, 1999, Boiler No. 1 be used as an emergency unit, not to exceed 500 hours per calendar year; and (6) after May 1, 1999, the original cogeneration unit will no longer be operated.

The repowering plan further requires that, during the interim period of May 1, 1995 and May 1, 1999, the NOX emission limits and other requirements for the boilers and cogeneration units are as follows: (1) For Boiler No. 1, 0.40 lb/mmBTU when firing natural gas, and 0.30 lb/mmBTU when firing a mixture of number 6 oil and lasalocid oil; (2) for the cogeneration facility (engine and HRSG), 582 lb/hr when firing number 6 oil in the engine and natural gas in the duct burner; (3) for the engine only, 8.0 grams NOX per horsepower-hour; (4) for Boiler No. 6 (duct burner) only, 0.20 lb/mmBTU; and (5) annual adjustment of the combustion process on Boilers No. 1 and 6.

The Township of Wayne, Mountain View Water Pollution Control Facility owns and operates two multiple hearth type sewage sludge incinerators which burn sewage sludge from its wastewater treatment plant located in Wayne, Passaic County. On October 20, 1998, EPA approved (63 FR 55949) a December 1996 SIP revision for this same facility that included a RACT limitation and a State requirement to perform compliance testing which would confirm or establish a new facility-specific NOX emission limit. In a letter dated February 21, 2001, New Jersey informed EPA that, as a result of stack tests conducted in April 1998, the State, on December 21, 2000, revised the facility-specific NOX emission limit requirements previously approved by EPA. The maximum allowable NOX emission limit was revised from 12.0 lb/hr to 7.0 lb/hr per incinerator and the maximum allowable sludge feed rate was revised from 1.0 dry ton per hour to 0.8 dry ton per hour per incinerator. EPA is incorporating the revised permit condition into the SIP.

Once a permit limit is submitted and approved of by EPA as a SIP emission limit, in accordance with sections 110(l) and 116 of the CAA, it can not be made less stringent than the federally approved limit unless it is submitted and approved as a SIP revision with the exception of cases where the approved SIP establishes procedures which allow for making the limit more stringent. The CAA is silent on whether a more stringent adjustment of a previously approved SIP limit must be submitted to EPA as a SIP revision. In the case of Township of Wayne, the Agency has accepted notification of a new limit rather than submission as a SIP revision because the previously approved SIP revision stated that the limit could be made more stringent as a consequence of required compliance test results. This Federal Register notice is the agency publication of the new NOX limit. The new limit will become the new federally enforceable NOX SIP limit upon the effective date of this Federal Register notice. At that point, it can not be made less stringent without submission of, and approval by EPA as, a SIP revision.

The CAA required certain states to develop RACT regulations for major stationary sources of NOX and to provide for the implementation of the required measures as soon as practicable but no later than May 31, 1995. Under the CAA, the definition of major stationary source is based on the tons per year (tpy) air pollution a source emits and the quality of the air in the area of the source. In ozone transport regions, attainment/unclassified areas as well as marginal and moderate ozone nonattainment areas, a major stationary source for NOX is considered to be one which emits or has the potential to emit 100 tpy or more of NOX and is subject to the requirements of a moderate nonattainment area. New Jersey is within the Northeast Ozone Transport Region, established by section 184(a) of the CAA, and has defined a major stationary source for NOX as a source which has the potential to emit 25 tpy, the level set for severe ozone nonattainment areas. For detailed information on the CAA requirements for NOX RACT see the Technical Support Document prepared for today's rulemaking action.

On November 15, 1993, New Jersey submitted to EPA, as a revision to the SIP, Subchapter 19 of Chapter 27, Title 7 of the New Jersey Administrative Code. Subchapter 19 is entitled “Control and Prohibition of Air Pollution From Oxides of Nitrogen.” This Subchapter provides the NOX RACT requirements for New Jersey and was effective on December 20, 1993. New Jersey submitted Subchapter 19 to EPA, as a revision to the SIP, on November 15, 1993 and on January 27, 1997, the EPA final approval action on Subchapter 19 was published in the Federal Register (62 FR 3804).

On March 24, 1995, New Jersey adopted amendments to Subchapter 19 and submitted them to EPA for approval as a SIP revision on June 21, 1996. On March 29, 1999, the EPA final approval action on the revised Subchapter 19 was published in the Federal Register (64 FR 14832).

Section 19.3 of New Jersey's regulation establishes a procedure for a case-by-case determination of what represents RACT for a particular facility item, equipment or source operation. This procedure is applicable in two situations: (1) Except for non-utility boilers, if the major NOX facility contains any source operation or item of equipment of a category not listed in section 19.2 which has the potential to emit more than 10 tons of NOX per year, or (2) if the owner or operator of a source operation or item of equipment of a category listed in section 19.2 seeks approval of an alternative maximum allowable emission rate.

New Jersey's procedure requires either submission of a NOX control plan if specific emission limitations do not apply to thespecific source, or submission of a request for an alternative maximum allowable emission rate if specific emission limitations do apply to the specific source. In either case, the owners/operators must include a technical and economic feasibility analysis of the possible alternative control measures. RACT determinations for an alternative maximum allowable emission rate must consider control technologies (e.g., low NOX burners) and alternative control strategies (e.g., emissions averaging, seasonal fuel switching to natural gas, and repowering). Also, in either case, Subchapter 19 requires that New Jersey establish emission limits which rely on a RACT determination specific to the facility. The resulting NOX control plan or alternate maximum allowable emission rate must be submitted to EPA for approval as a SIP revision.

Section 19.21 of New Jersey's regulation allows attainment of compliance through repowering. Under Subchapter 19, repowering is defined as the permanent cessation of steam generator operations replaced by either the installation of a new combustion source or the purchase of heat or power from a new combustion source located in New Jersey.

Section 19.21 requires that a source owner who requests compliance through repowering: (1) Enter into an enforceable commitment with the State to repower; (2) submit an analysis that defines RACT for the interim period between May 31, 1995 and the date the unit will be repowered; (3) specify a date, which can be no later than May 31, 1999, by which the unit will be repowered; (4) include appropriate milestones for the repowering project; (5) meet applicable SIP and Federal requirements upon the repower date; and (6) ensure that the repowering commitment is federally enforceable.

Section 19.21 also requires that a source establish emission limits using advanced control techniques and commit to meet these limits once the source is repowered. The maximum allowable NOX emissions rate, expressed in pounds per million BTUs, for repowered utility boilers ranges from 0.1 to 0.2 depending upon the type of boiler and the type of fuel. Section 19.21 allows repowering of all combustion sources.

After reviewing the submittals, EPA found them all administratively and technically complete. For each source discussed in this rulemaking, EPA determined that the New Jersey letter of approval identifies NOX requirements which represent RACT for the source. The conditions contained in the Conditions Of Approval Documents (COADs) or revised permits include, for example, emission limits, work practice standards, and testing, monitoring, and record keeping/reporting requirements. These conditions are consistent with the NOX RACT requirements specified in Subchapter 19 and conform to EPA NOX RACT guidance. Please note there may be other requirements, such as adequate monitoring, which States and sources will need to provide for, through the Title V permitting process. Therefore, EPA is approving New Jersey's three source-specific SIP revision submittals, which include seven source-specific RACT determinations, dated January 21, 1998, June 12, 1998 and April 26, 1999.

In addition, for an eighth source-specific RACT determination, New Jersey has revised a NOX RACT permit emission limit that EPA previously approved and EPA is incorporating the revised stricter limit into the State's SIP. As explained previously in this rulemaking notice, in a February 21, 2001 letter, the State notified EPA that it lowered the limit in accordance with the approved SIP.

EPA's evaluation of each RACT submittal is detailed in a document entitled “Technical Support Document-NOX RACT Source-Specific SIP Revisions-State of New Jersey.” A copy of that document is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document. EPA's summary of findings for each facility Is found in Section II of this Notice.

Prior to adoption of the seven source-specific RACT revisions discussed in this rulemaking, New Jersey published proposed limitations for each source specific RACT determination in local newspapers and provided thirty (30) days for public comment and an opportunity to request a public hearing. New Jersey reviewed and responded to all comments. The State then determined that the proposed NOX control plans, alternative maximum allowable emission rates and repowering plan conform with the provisions of sections 19.13 or 19.21 of New Jersey's regulation. These RACT determinations were made during 1996, 1997 and 1998.

After New Jersey made each determination it issued letters of approval to each owner. These letters included and incorporated a COAD or a revised permit. Each COAD or revised permit contains conditions consistent with Subchapter 19. These conditions are considered approved permit conditions which are fully enforceable by the State. Each COAD and revised permit is identified in the “Incorporation by reference” section at the end of this Notice.

New Jersey submitted the seven source-specific SIP revisions to EPA on January 21, 1998, June 12, 1998 and April 26, 1999.

The EPA is approving the source-specific SIP revisions described above as RACT for the control of NOX emissions from the seven sources identified in the three source-specific SIP revisions and for an eighth source, is approving the stricter limit revised by the State in accordance with a SIP revision which EPA previously approved. Please note that if EPA receives an adverse comment on an amendment, paragraph, or a specific source addressed in this direct final rule and if the provision that relates to the adverse comment may be severed from the remainder of the rule, EPA may sever the provision and adopt as final those provisions of the rule that are not the subject of the adverse comment.

The EPA is publishing this rule 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 these same seven source-specific SIP revisions should adverse comments be filed. This final rule will be effective October 10, 2003 without further notice unless the Agency receive relevant adverse comments by September 10, 2003.

If the EPA receives adverse comments, then EPA will publish a notice withdrawing the final rule or sever that portion of the final rule and informing the public that the rule did 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. 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 October 10, 2003 and no further action will be taken on the proposed rule.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. section 804(3). EPA is not required to submit a rule report regarding this action under section 801 because this is a rule of particular applicability.

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 October 10, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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).)

Throughout this document, “we,” “us,” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On July 19, 1996, the submittal of Rules 218 and 219 were found to meet the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

There are no previous versions of Rules 218 and 219 in the SIP.

Rule 218 includes the following significant provisions:

• The owner or operator of a specified stationary source, that would otherwise be designated a major source because the potential to emit exceeds the major-source threshold for regulated pollutants, would be allowed under Rule 218 to avoid being subject to Title V, federal permitting requirements, if the actual annual emissions do not exceed any of the following emission limitations: (1) 50 percent of the major-source thresholds for regulated air pollutants excluding hazardous air pollutants (HAPs), or (2) 5 tons per year of a single HAP, or (3) 12.5 tons per year of any combination of HAPs, or (4) 50 percent of any lesser threshold for a single HAP as the EPA may establish as a rule.

• There are also alternate operational limitations for specific stationary sources that may be used provided that at least 90 percent of the source's total emissions in every 12-month period are associated with the sources with the operational limitations.

• There are detailed recordkeeping and reporting requirements to assure compliance with the emission limitations and operational limitations.

Rule 219 includes the following significant provisions:

• The owner or operator of a specified stationary source, that would otherwise be a major source, would be allowed to request and accept federally-enforceable limits such that the annual potential to emit would be below major-source thresholds in order to allow the source to be considered a “synthetic minor source.”

• The limits to the potential to emit must be approved by EPA and must be permanent, quantifiable, and practically enforceable.

• A synthetic minor source would not be subject to the permitting requirements of Rule 217, Title V-Federal Operating Permits or of Title V of the CAA. The TSDs have more information about these rules.

In combination with the other requirements, the rules in today's action must be enforceable (see section 110(a) of the CAA) and must not relax existing requirements (see sections 110(l) and 193). These rules were also evaluated using EPA policy describing options sources have for limiting their potential to emit under section 112 and Title V of the CAA. This policy is generally described in a January 25, 1995 policy memorandum entitled, Options for Limiting the Potential to Emit of a Stationary Source Under Section 112 and Title V of the Clean Air Act from John Seitz, Director of EPA's Office of Air Quality Planning and Standards, to EPA's Regional Air Division Directors. Rule 218 was compared to a model California prohibitory rule contained in the January 25, 1995 policy memorandum.

Rule 219 was also compared to EPA guidance on establishing a synthetic-minor operating-permits program published on June 28, 1989 (54 FR 27247). Permits issued pursuant to this voluntary program that meet the June 28, 1989 criteria are considered federally enforceable for criteria pollutants. The synthetic minor mechanism may also be used to create emission limits for emission of hazardous air pollutants (HAPs), if it is approved pursuant to section 112(l) of the CAA. In short, a program to create federally-enforceable limits on a source's potential to emit should:

• Be approved by EPA into the SIP.

• Impose legal obligations for operating permit holders to adhere to permit limitations.

• Provide for limits that are enforceable as a practical matter.

• Have permits issued in a process that provides the opportunity for review and comment by the public and EPA.

• Ensure that there is no relaxation of otherwise applicable Federal requirements.

We believe that these rules are generally consistent with the relevant policy and guidance regarding enforceability and SIP relaxations and with EPA policy describing options sources have for limiting their potential to emit under section 112 and Title V of the CAA. Rule 219 is consistent with EPA criteria published on June 28, 1989 (54 FR 27247) for approving and incorporating into the SIP synthetic-minor federally-enforceable state operating permits. The TSDs have more information on our evaluation.

The TSDs describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rules.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this, so we are finalizing the approval without proposing it in advance. However, in the Proposed rule section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by September 10, 2003, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on October 10, 2003. This will incorporate these rules into or rescind rules from the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this direct final 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.

Sections 172 and 173 of the CAA require that Title V permits be obtained for affected sources, major sources, and any sources required by parts C and D of the CAA. If certain sources could limit their potential to emit to below major-source thresholds or satisfy synthetic minor-source requirements, they would not be required to obtain a Title V permit. CARB submitted administrative rules to support these actions for qualified sources.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 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 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. 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. section 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 October 10, 2003. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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).)

On December 18, 1991, the Intermodal Surface Transportation Efficiency Act (ISTEA or Act), Public Law 102-240 was signed by President George H. Bush and became law. Section 4012 of the Act directed the Secretary of Transportation to initiate rulemaking for improving the braking performance of new commercial motor vehicles—defined by ISTEA as those with a GVWR of over 26,000 pounds (lbs.)—including truck tractors, trailers, and dollies. The Act directed that in that rulemaking, the agency examine antilock brake systems (ABS), means of improving brake compatibility, and methods of ensuring the effectiveness of brake timing. In response to that congressional mandate, we published a final rule requiring ABS to be installed on hydraulic and air-braked medium and heavy vehicles on March 10, 1995 (60 FR 13216) (hereinafter referred to as the stability and control final rule). For truck tractors only, the ABS requirements included a braking-in-a-curve performance test on a low-coefficient of friction surface. The test includes a full brake application in both the lightly loaded (bobtail) configuration and with the tractor loaded to its GVWR, the latter using an unbraked control trailer.

Due to limited data and concerns regarding the braking-in-a-curve test, the March 1995 Final Rule did not apply the test to single-unit trucks, buses, or air-braked trailers. We stated, however, that we would continue research on dynamic performance tests for single-unit vehicles and would consider proposing to apply performance test requirements to those vehicles at a future time.1

We conducted ABS testing of single-unit trucks and buses in 1996 and 1997 at our Vehicle Research and Test Center (VRTC) in East Liberty, OH.2 Five air-braked straight trucks and two hydraulic-braked buses, all equipped with ABS, were used in the tests to aid in determining if the braking-in-a-curve performance test for tractors should be applied to single-unit vehicles. The vehicles were subjected to all the requirements of Standards No. 105 and No. 121, including the braking-in-a-curve performance tests.

The braking-in-a-curve tests began with the determination of a maximum drive-through speed, followed by the determination of the maximum brake-through speed. As defined in Standard No.121, “maximum drive-through speed” is the fastest constant speed that a vehicle can be driven through at least 200 feet of curve arc length without departing the lane. “Maximum brake-through speed” is defined as the fastest speed at which a full brake application can be made while the vehicle is in the curve, without the vehicle departing the lane. Determination of the maximum brake-through speed provided data on the potential margin of compliance or non-compliance for the test vehicles.

In the agency's testing, both trucks and school buses were tested in loaded-to-GVWR and lightly loaded conditions. The trucks were ABS equipped chassis-cabs without bodies or equipment that would normally be installed by a second-stage manufacturer. However, to simulate the lightly loaded condition of completed vehicles, a 2,500 lb load frame with an integrated roll bar was installed on the chassis cabs. Trucks tested in the loaded-to-GVWR condition were weighted to their GVWRs, with the axle loads in proportion to their GAWRs. Two ABS equipped school buses were also tested in loaded-to-GVWR and lightly loaded conditions. The loaded-to-GVWR tests on the school buses were conducted with sand bags placed on the floor and seats so the total vehicle weight was equal to its GVWR, with axle loads in proportion to their GAWRs.

The braking-in-a-curve tests were conducted on a low friction wetted surface. The test curve had a 12-foot-wide lane with a 500-foot radius of curvature (marked from the center of the lane). Traffic cones were placed on both sides of the lane at 20-foot intervals. The surface had a cross slope of one percent and approximately zero longitudinal slope. The peak coefficient of friction (PFC) of the surface during the time of the testing ranged from 0.34 to 0.41. The effect of the cross slope was such that the test condition was considered to be worst case, since it may not be possible to conduct all road testing on a completely level road surface, due to variability and water run-off design requirements. The lower end of the PFC range was also considered to be a worst-case test condition.

The results of the testing at VRTC indicated that the braking-in-a-curve test is practicable, repeatable, and safe for single unit vehicles. Six of the seven vehicles tested met the performance requirements now in effect for tractors, i.e., they stayed in the lane in at least three out of four stops when subjected to maximum braking at 75 percent of the maximum drive-through speed. In fact, these six vehicles remained in the lane during all four stops at 75 percent of the drive-through speed, all with a large margin of compliance.

On December 21, 1999, the agency published a notice of proposed rulemaking in the Federal Register (64 FR 71377) containing the agency's proposal for a braking-in-a-curve test for single-unit trucks and buses. NHTSA proposed that the braking-in-a-curve test be conducted in two different conditions: with the vehicle lightly loaded, and with the vehicle loaded-to-GVWR. The agency proposal also specified the same road test geometry now in effect for tractors, namely a 12-foot-wide lane with a 500-foot radius measured at the center of the lane with the test surface having a peak friction coefficient (PFC) of 0.5. The proposal also specified that the test speed is 75 percent of the maximum drive-through speed or 30 mph, whichever is lower. The brake pedal force specification proposed in the notice called for a pressure of 150 pounds to be achieved at the brake pedal within 0.2 seconds from the initial application and maintained for the duration of the stop. The proposal specified that the brake temperature at the time of testing is to be between 150 and 200° F and the test performed with the transmission in neutral or the clutch pedal depressed. Finally, the agency proposal specified that in 3 of 4 consecutive stops, the test vehicle is to remain in the 12 foot wide marked lane when tested in both the lightly loaded condition and when loaded-to-GVWR in proportion to each GAWR.

Since the braking-in-a-curve test is one brake test in a test sequence, the agency proposed that the braking-in-a-curve test for air-braked single-unit trucks and buses be conducted immediately after the burnish procedure as indicated in Table I of Standard No. 121, with the loaded-to-GVWR tests followed by the lightly loaded tests. We also proposed that the braking-in-a-curve test for hydraulic-braked single-unit trucks and buses be conducted immediately after the post-burnish brake adjustment in S7.4.2.2, with the loaded-to-GVWR tests followed by the lightly loaded tests.

In order to provide manufacturers with sufficient lead time to comply with the proposed requirements, the proposal indicated that the effective date for the braking-in-a-curve test requirements, for both air and hydraulic-braked single unit trucks and buses, be two years after publication of the final rule in the Federal Register.

NHTSA received comments about its proposal from vehicle and brake manufacturers as well as safety and trade groups. Three vehicle manufacturers, DaimlerChrysler Corporation (DaimlerChrysler), Ford Motor Company (Ford) and Mitsubishi Motors R&D of America Incorporated (Mitsubishi), submitted comments. Comments were also received from Haldex Brake Products Corporation (Haldex), Bendix Commercial Vehicle Systems (BCVS) and Bosch Braking Systems Corporation (Bosch). Several trade associations, National Truck Equipment Association (NTEA), Heavy Duty Brake Manufacturers Council (HDBMC), American Trucking Associations (ATA) and Truck Manufacturers Association (TMA), offered their views. One safety group, Advocates for Highway Safety (Advocates), submitted comments as well.

With the exception of TMA and NTEA, the commenters generally supported the agency proposal. However, many of the commenters argued that requiring that the braking-in-a-curve test be run in both the loaded-to-GVWR and lightly loaded conditions was unnecessary and that the lightly loaded test alone was sufficient. In addition, a number of commenters indicated dissatisfaction with the proposed test sequence and some of the proposed test conditions. Other commenters indicated their belief that the agency's proposal underestimated the compliance burdens that the proposal, if adopted, would impose on final stage manufacturers and alterers.

One commenter addressed what it believed to be shortcomings in the configuration of the test curve. Advocates stated that the proposed test configuration—a zero longitudinal slope, 500-foot continuous curve radius, 12-foot wide lane and one percent side slope—does not approach worst-case real-world operating condition. In addition to criticizing the severity of the test, Advocates viewed the proposed test as not sufficiently demanding and indicated that few vehicles equipped with ABS would fail the proposed test.

DaimlerChrysler disagreed with the proposed requirement that “no part” of the test vehicle leave the marked lane of the braking curve during a stop. Instead, DaimlerChrysler requested that this requirement be changed so that a vehicle would comply if no part of any point of contact of any tire left the lane during the stop. The company noted that the agency proposal did not clearly indicate how any departure of any part of the vehicle from the traveled lane would be detected. DaimlerChrysler further indicated that vehicles with large rear overhang would be placed at a severe disadvantage since any lateral movement of the rear wheels would result in the rear of a longer vehicle moving closer to the outside of the lane. DaimlerChrysler also requested that NHTSA delete the specification that the braking-in-a-curve test be conducted on a wet surface. In DaimlerChrysler's view, the requirement that the surface be wet is unnecessary. In the company's view, it is immaterial whether the test surface is dry or wet if the surface has the proper coefficient of friction (PFC).

The comments submitted by vehicle manufacturers and trade groups were nearly unanimous in their disapproval of the proposed requirement that testing be conducted with vehicles in both a lightly loaded condition and a loaded-to-GVWR condition. HDBMC stated that many single-unit trucks and buses have already been tested for braking-in-a-curve performance and that, with regard to loading condition, the worst-case condition is when the vehicle is lightest. HDBMC also stated that in the case of testing in the loaded-to-GVWR condition, it recommends that the center-of-gravity height for the ballast should be not more than 32 inches above the frame rails. Haldex and HDBMC also recommended that the 32-inch load height for single-unit trucks be specified for 60-mph straight-line stopping distance tests as well.

BCVS advocated deletion of the fully-loaded braking-in-a-curve test for the following reasons: A lightly-loaded test condition is the most severe condition; the SAE recommended practice (RP) J1626 “Braking Stability and Control Performance Test Procedures for Air and Hydraulic Brake Equipped Trucks, Truck-Tractors and Buses' specifies that the braking-in-a-curve performance test be conducted in the lightly-loaded condition with the loaded-to-GVWR condition optional; loading the vehicle increases the risk of rollover; and determining an appropriate loading specification for the variety of vehicle configurations and body forms would be difficult. BCVS further stated that if NHTSA believes that the fully-loaded braking-in-a-curve test is essential, then the load center-of-gravity height should be established at a height that is not likely to lead to vehicle rollover. Concerns about vehicle rollover apparently also prompted BCVS to suggest that the allowance of 1,000 lbs. for a rollbar, and 500 lbs. for driver and instrumentation, which was proposed in the NPRM for the lightly-loaded braking-in-a-curve test for single-unit trucks and buses, be applied to other lightly-loaded road tests in FMVSS No. 121.3

Ford stated that it believes there is no useful information to be obtained from conducting the braking-in-a-curve test with the vehicle loaded-to-GVWR. Ford cited the fact that the SAE Truck and Bus Vehicle Deceleration and Stability Subcommittee found that 29 out of 31 single-unit vehicles tested in the braking-in-a-curve test the lightly-loaded test condition performed the same or worse than when tested in the loaded-to-GVWR test condition. Ford states that the two vehicles that performed better in the loaded-to-GVWR test condition were heavier-duty trucks and had sufficient margins of compliance in both loading conditions.

TMA stated that because of safety concerns, NHTSA should reconsider its decision to require the braking-in-a-curve test in the loaded-to-GVWR test condition. TMA believes that a loaded-to-GVWR vehicle could slide off the low coefficient test surface of the 500-foot radius curve onto a higher coefficient of friction surface and then rollover. TMA cited NHTSA statements in the NPRM that the NHTSA tests involving vehicles with a load at a high center of gravity height caused an unsettling feeling [to the test driver] with regard roll stability. TMA presented data to support its view that testing in the loaded-to-GVWR condition is less stringent than testing in the lightly-loaded condition. TMA concluded that testing in the loaded-to-GVWR condition provides no additional confirmation of vehicle performance, presents a significant safety risk of vehicle rollover, and would increase test burdens without any measurable benefit to vehicle safety.

In addition to advocating removal of the requirement that vehicles be tested in a loaded-to-GVWR condition, a number of commenters indicated that the proposed test sequence be changed.

To reduce costs associated with loading and unloading test vehicles, Bosch requested that the braking-in-a-curve test be performed following the loaded-to-GVWR parking brake test, with the loaded-to-GVWR braking-in-a-curve test followed by the lightly loaded braking-in-a-curve test, for both hydraulic- and air-braked single-unit vehicles. Bosch also stated that it appeared that the agency had not considered the costs incurred by different phases of the test sequence requiring loading and unloading of the test vehicle. Bosch requested that the test sequence be changed to eliminate the requirement that empty vehicles be loaded solely for the purpose of conducting the braking-in-a-curve test after brake burnishing. Ford requested that if the agency decided to drop the loaded-to-GVWR braking-in-a-curve test, the test sequence be changed so that burnish and loaded-to-GVWR straight-line stops be conducted first, followed by braking-in-a-curve tests in the lightly-loaded condition, followed by lightly-loaded straight-line stops. In Ford's view, this sequence would eliminate one loading and unloading cycle and improve test efficiency.

One manufacturer, Mitsubishi, commented that the requirements proposed for the force and timing of brake pedal applications during the braking-in-a-curve test are too stringent. The proposal specified that a brake pedal force of 150 lbs. be achieved within 0.2 second from the initial application of force to the brake control (brake pedal) and that this minimum force be maintained for the duration of the stop. Mitsubishi believes that this application time would be difficult to achieve. The company provided test data from tests conducted on single unit trucks showing that test drivers could achieve 150 lbs. of pedal force within 0.2 seconds in only three out of 10 sample stops.

TMA and NTEA criticized our proposal as imposing significant test burdens and costs on small businesses beyond what those entities should reasonably be expected to bear. These commenters are concerned that final stage manufacturers and alterers may not be able to rely on the certification of an incomplete vehicle manufacturer to the extent portrayed by the agency in proposing the new requirements, particularly since many trucks are configured for highly specialized applications. Moreover, TMA argued that since NHTSA is proposing performance requirements for all classes of vehicles, it should consider removing the existing ABS equipment requirements. TMA stated these equipment requirements are unduly restrictive and may impede development of improved ABS systems. NTEA stated that the proposal should be abandoned on the basis that there are no additional benefits attained by adding the proposed test procedure.

In regard to costs, TMA argued that in preparing the proposal, NHTSA tested only the most common two- and three-axle truck configurations (i.e., 4 x 2 and 6 x 4), and has not adequately addressed the problems posed by other axle configurations. As aftermarket axles are often added to incomplete vehicles—which can cause a vehicle to fall outside of the Incomplete Vehicle Document (IVD) parameters specified by the incomplete vehicle manufacturer—final stage manufacturers will bear additional responsibility for certification. TMA stated that low-volume, special configurations may need to be excluded from this portion of the standard, and believes that it is premature to conclude that the proposal is practicable for all single-unit trucks and buses. TMA also believes the agency has significantly underestimated the cost of performing stand-alone braking-in-a-curve tests on previously certified vehicles. TMA stated that stand-alone testing will require shipping vehicles to a test site, installation of new brake system parts, burnishing, loading and unloading, charges for facilities, drivers, mechanics and test engineers as well as instrumentation support and reporting. The organization estimated that stand-alone braking-in-a-curve testing costs will average between $4,500 and $6,000 per test and a full FMVSS No. 105 or 121 certification will cost $10,000 to $13,000.

NTEA also believes that pass-through certification requirements supplied by incomplete vehicle manufacturers will be so restrictive that pass-through certification will not be available and that small companies would not have the means to conduct certification testing. NTEA stated that a final stage manufacturer could ensure compliance only through actual testing. In NTEA's view, the added cost of this testing will be prohibitive. Therefore, NTEA contends that final stage manufacturers would be compelled either to cease operations or choose not to test and risk a host of liabilities. NTEA further argues that the agency has repeatedly taken the position that alternatives to actual compliance testing, such as engineering analyses, computer simulations, or group testing through trade associations, may not suffice as evidence of the due care required for certification.

DaimlerChrysler referred to what it believes to be errors in the agency proposed changes to FMVSS No. 105. The company stated that the proposed regulatory text deleted S7.8 from the list of test procedures and sequences, and inadvertently added S7.11. DaimlerChrysler also believes that the words “except for vehicles with a GVWR greater than 10,000 lbs.” were inadvertently deleted from S7.5(b), and that the word “must”—proposed in lieu of the current “shall” in S7—should be retained. DaimlerChrysler also noted that the word “control” was deleted from the phrase “transmission selector control” in S7 and recommended that the word “control” be retained. Finally, DaimlerChrysler indicated that while it prefers retaining the existing language for S5.7(b), which governs test speeds for each category of vehicle for the second effectiveness test, that the existing language of S5.7(b) is also incorrect

This final rule adopts the amendments to FMVSS No. 105 and FMVSS No. 121 proposed in the December 21, 1999 NPRM with several modifications. First, because the agency agrees with those commenters who argued that the lightly loaded test condition is the most severe test of an ABS system in a braking-in-a-curve test, the final rule eliminates the proposed requirement that testing include braking runs by a vehicle in a loaded-to-GVWR condition. The final rule also modifies the proposed test sequence to reflect the elimination of the loaded-to-GVWR condition requirement and to simplify testing. We are also modifying the requirements for the full brake application used in the braking-in-a-curve test and making a number of corrections to the regulatory text.

The most significant modification to the proposal is our decision to eliminate the requirement that the braking-in-a-curve test be performed with the test vehicle in a lightly loaded and heavily loaded configuration. The comments submitted in response to the NPRM favored elimination of the requirement that vehicles be tested in a loaded-to-GVWR condition. These commenters argued that the brakes on a lightly loaded vehicle are generally much more likely to lock on a low friction surface than those on an identical vehicle with a heavy load.

The agency's own testing and data submitted by TMA indicate that the lightly-loaded test condition has a lower margin of compliance than tests in the loaded-to-GVWR condition. In those few cases in which the loaded-to-GVWR test condition resulted in a lower margin of compliance, the margin of compliance was still quite large for the lightly-loaded condition. These tests and data demonstrate that the loaded-to-GVWR test offers little additional information about a vehicle's ABS performance beyond what can be shown by just using the lightly-loaded test.

In addition, the agency agrees with the observations of several commenters that there is a risk of vehicle rollover while conducting the braking-in-a-curve test with a loaded-to-GVWR vehicle unless a low center-of-gravity loading scheme is required. Developing and implementing a uniform low center-of-gravity scheme for single-unit vehicles would be difficult given the large number of single-unit truck configurations. Use of a higher center-of-gravity load increases concerns about roll stability. During the maximum drive-through speed test, which determines the speed at which the braking-in-a-curve test is conducted, the test vehicle will depart from the test lane if the driver exceeds the maximum drive through speed of the vehicle for that road surface condition. If this occurs, the test vehicle may move laterally onto a wet asphalt surface with a higher coefficient of friction (PFC 0.8). In these conditions, a vehicle loaded so that it has a high center of gravity could become unstable and rollover. The HDBMC offered its view that the agency should specify a 32-inch center-of-gravity height for any ballast added to create a loaded condition for any agency braking tests, including the proposed test. We note first that as the agency is not specifying that the braking in a curve test be performed in a loaded-to-GVWR condition, this eliminates HDBMC's concerns for that test.

While the agency is not including the fully-loaded-to-GVWR braking-in-a-curve test for single-unit vehicles in this final rule, it will keep this test requirement in FMVSS No. 121 for truck tractors. Reasons for keeping this requirement include the large variation in vehicle weight of unladen tractors (bobtail) to fully-loaded-to-GVWR tractors; the large contribution of the tractor in providing braking force when a loaded semi-trailer is coupled to the tractor; and the articulated configuration of the tractor and semitrailer that results in the trailer contributing to the lateral force on the tractor drive wheels during a braking-in-a-curve test. In addition, since loading a tractor to GVWR is accomplished by coupling a loaded control trailer to the tractor, the labor effort for loading and unloading is minimal compared to single-unit vehicles.

This final rule also modifies the test sequence. We note that our proposed test sequence, which is already in effect for truck tractors, is based on several factors. The braking-in-a-curve test is placed early in the sequence so re-running the required straight line tests need not be done if the vehicle does not pass the braking-in-a-curve test. In addition, placing the braking-in-a-curve test early in the sequence avoids performing the braking-in-a-curve test with tires that may have developed flat spots on non-ABS controlled wheels during other tests. Although these flat spots will not appear if all wheels of a vehicle are controlled by ABS, there is no requirement that vehicles be so equipped. NHTSA must assume that compliance testing may encompass vehicles that do not have ABS controlling all their wheels. However, placing the braking-in-a-curve test near the beginning of the test sequence when the vehicle has to be tested in a loaded-to-GVWR and lightly-loaded condition, requires that the vehicle be loaded, tested in the curve, unloaded, tested in the curve and then loaded again for straight line tests. Compared to tractors, where the loading and unloading involves attaching or uncoupling a trailer, the loading and unloading of vehicles is more time consuming, particularly for buses where weights have to be placed in each seating position.

Our decision to require the braking-in-a-curve test for single unit vehicles only in the lightly loaded condition eliminates the need for loading and unloading for the braking-in-a-curve test. However, as some of the commenters observed, other changes to test sequences could reduce test burdens without compromising safety. Changing the FMVSS No. 105 test sequence to perform the braking-in-a-curve after the lightly-loaded parking brake test would reduce the unloading/loading and loading/unloading cycles in the entire test sequence from four to two. Changing the test sequence for single unit vehicles in FMVSS No. 121 so that the braking-in-a-curve test is performed after the loaded-to-GVWR parking brake tests would reduce the unloading/loading and loading/unloading cycles from three to one. As these changes to the test sequences would reduce test burdens and not compromise safety, this final rule revises the test sequences in FMVSS No. 105 so the braking-in-a-curve test is performed after the lightly loaded parking brake test and incorporates a test sequence for single unit vehicles in FMVSS No. 121 specifying that the braking-in-a-curve test is performed after the loaded-to-GVWR parking brake tests.

One commenter, Mitsubishi, submitted data to support its argument that NHTSA's proposed specifications for the brake application used in the FMVSS No. 105 braking-in-a-curve test were too stringent. As indicated above, the company argued that our proposal that a brake pedal force of 150 lbs. be achieved within 0.2 second from the initial application of force would be impractical. Data from testing performed by Mitsubishi using test drivers in single unit trucks indicated that a pedal force of 150 lbs. was achieved in 0.2 seconds or less in only three out of ten stops. Mitsubishi suggested that a 0.5 second application time is more practicable.

NHTSA agrees that it is difficult to reach the required application pressure within 0.2 second with a test driver. However, the agency believes that a 0.5 second application time is too slow. The Mitsubishi data show that the application time for the ten stops ranged from 0.18 to 0.31 second. The data also show that the 150 lbs. threshold was exceeded significantly in every case within 0.5 second of the initial application. Our review of the Mitsubishi data indicates that a test driver is able to reach 150 lbs. of force within 0.3 second of the initial application. Accordingly, this final rule specifies that a full brake application for the braking-in-a-curve test consists of an application where 150 lbs. of force is applied to the brake control within 0.3 seconds of the initial application of force to the brake control.

Finally, NHTSA is making a number of changes to the regulatory text to resolve errors and clarify the new requirements. As proposed in the NPRM, S5.1.7 of FMVSS No. 105 stated that the braking-in-a-curve test must be conducted at lightly-loaded vehicle weight plus up to 500 lbs. to allow for a test driver and instrumentation. However, S4 of FMVSS No. 105 already included a definition of lightly-loaded vehicle weight (for vehicles over 10,000 lbs. GVWR) with an allowance for 500 lbs. for the test driver and instrumentation. As the definition of “lightly-loaded” already includes an allowance for the test driver and instrumentation, this final rule deletes the redundant language in S5.1.7. DaimlerChrysler's comments indicated that the agency inadvertently deleted S7.8 from the list of test procedures and sequences in FMVSS No. 105, and inadvertently added S7.11 to the list. NHTSA agrees and is correcting the errors in the final rule. To address other errors noted by DaimlerChrysler, the final rule inserts the phrase “except for vehicles with a GVWR greater than 10,000 lbs.” in S7.5(b), the words “shall” and “control” in S7, and in S5.7.(b) modifies the table or test speeds for each category of vehicle for the second effectiveness test.

The agency is making other minor technical or clarifying changes based on its own review. The first sentence of S6.1.1 referencing lightly-loaded braking tests is also amended to include a reference to the braking-in-a-curve test for vehicles over 10,000 lbs. GVWR and S6.1.2, which identifies how the 500 lbs. of weight allowed for the test driver and instrumentation is to be placed in the vehicle, is also modified from the language of the proposal. The text of S6.9.2(a), which specifies the test surface for stopping distance tests in FMVSS No. 105, is also being revised to clarify that this specification does not include the stability and control while braking test in S6.9.2(b). S7 is revised in the final rule to accommodate the insertion of the stability and control test in S7.5(a), and references to S7.5 in the test procedure and sequence are being changed to S7.5(b). The final rule also deletes the proposed language of S5.3.6.2(a) of FMVSS No. 121—indicating that the vehicle is to be loaded to its GVWR in proportion to its GAWRs —as this specification is already included in S6.1.1 under S6, Road Test Conditions.

In limiting the modifications to its original proposal to those items described above, the agency is rejecting a number of changes suggested by the commenters. Advocates stated that the characteristics of the roadway specified for the braking-in-a-curve test do not approach worst-case operating conditions and that few vehicles properly equipped with ABS would fail the proposed braking-in-a-curve test. NHTSA disagrees that the braking-in-a-curve course is not demanding, since disabling the ABS on single-unit trucks and buses would likely result in these vehicles departing the lane during a full effort brake application. The agency believes that the proposed test configuration is sufficiently rigorous to evaluate the safety performance of ABS.

DaimlerChrysler requested that compliance with the braking-in-a-curve test be determined on the basis of whether any tire point-of-road contact leaves the test lane rather than any part of the vehicle leaving the roadway. The company argued that the latter measure is unclear and should not be applied to vehicles with large rear overhangs. NHTSA believes that the measure of compliance is clear as it stands and well understood to mean that in the plan view (view from the top looking down), no part of the vehicle shall pass outside of the 12-foot lane during the stop. As currently specified in the FMVSS No. 121 test procedure, the test driver is instructed to start each braking-in-a-curve maneuver with the vehicle in the center of the lane. The test lane is marked with cones placed at 20-foot intervals that are tall enough to contact the body of the test vehicle if the body swings outside of the lane. This method has proved sufficient in determining if the vehicle remains in the lane. Moreover, agency testing on vehicles with a variety of overhangs indicates that a vehicle that is maintaining traction and control will not move laterally far enough for the rear of the vehicle to leave the traveled lane.

Most importantly, the purpose of the braking-in-a-curve test is to represent a driving situation that might be encountered on a public road during a panic brake application. We believe that no part of the vehicle including a rear overhang should encroach on another travel lane. If the agency permitted the rear wheels of a vehicle to touch the outside of the 12-foot wide lane during the braking-in-a-curve test then the rear overhang would be outside of the travel lane and could pose a crash threat to other vehicles when that vehicle is operated on public roads.

DaimlerChrysler also requested that NHTSA delete the requirement that the proposed braking-in-a-curve road surface be “wet.” The NPRM proposed that the braking-in-a-curve test be performed on a wet level surface having a peak friction coefficient (PFC) of 0.5. DaimlerChrysler indicated that the properties of test surface are adequately addressed by the command that it have a PFC equal to 0.5 when measured by a specific procedure. In DaimlerChrysler's view, if the PFC is correct, the pavement could be dry or wet. We do not agree with DaimlerChrysler's position. The procedure used for measuring the PFC of the test surface—ASTM Method E1337-90—requires use of a wetted surface. If the surface must be wet to determine its coefficient of friction for testing, it must also be wet when testing occurs. NHTSA also believes that deleting the word “wet” from FMVSS No. 105 would lead to confusion, since it would not be clear if the vehicle test should be conducted with the test surface wetted or dry.

Both NTEA and TMA voiced a number of objections to the agency proposal. As we observed above, NTEA urged the agency to terminate this rulemaking on the basis of its argument that no additional benefits are realized by adding the proposed test procedure to FMVSS No. 105 and FMVSS No. 121. Beyond that, NTEA objected to the additional costs and burdens imposed on final stage manufacturers by the proposal, arguing that pass-through certification will not be available and that their member companies do not have the means to conduct certification testing. NTEA contends that a final stage manufacturer can only be sure of compliance through actual testing. TMA raised similar objections to the costs imposed on final stage manufacturers by the proposal and argued that NHTSA has underestimated the costs and burdens that the regulations imposed on this segment of the industry. TMA also argued that adoption of the performance requirements for single unit vehicles would allow NHTSA to remove the existing equipment requirements for ABS from FMVSS No. 105 and FMVSS No. 121.

It is NHTSA's position that adding performance requirements for single unit trucks is necessary and desirable. NHTSA does not claim that additional safety benefits above those projected in the agency's Final Economic Assessment (FEA) for the 1995 final rule establishing the ABS requirements will be attained solely from implementing a braking-in-a-curve test for single-unit vehicles.4 As detailed in that FEA, NHTSA estimated that the use of ABS on all heavy vehicles would help prevent between 320 and 506 fatalities, between 15,900 and 27,413 injuries, and between $ 458 million and $ 553 million of property damage each year. These benefits assumed that ABS units installed on single-unit vehicles, which were not then subject to the braking-in-a-curve test, would be as effective as those installed on truck tractors. Therefore, now adding the braking-in-a-curve test for single unit vehicles does not modify those benefits.

Adding this performance test is, in our view, necessary to ensure those previously calculated benefits are realized. NHTSA has encountered several instances in which ABS systems that met equipment requirements did not meet the braking-in-a-curve test. As we explained in the 1995 ABS final rule, the braking-in-a-curve test provides an important check of ABS performance. Merely requiring ABS systems to meet the ABS definition does not ensure that an ABS system will provide an acceptable level of performance.

NHTSA does not agree with TMA's contention that the adoption of the braking-in-a-curve test for single unit vehicles eliminates the need for the ABS equipment requirements. As we discussed in the 1995 ABS final rule, we regard the braking-in-a-curve requirement as a complement to the ABS equipment requirement, and not as an alternative to it. (60 FR 13231) The braking-in-a-curve test alone can neither evaluate the overall effectiveness of ABS nor ensure the use of a closed-loop system. Such an evaluation would require an array of performance requirements such as split mu tests, surface transition tests, and stopping distance performance tests. However, the braking-in-a-curve test is an objective, repeatable, and practicable procedure for evaluating the performance of a vehicle's ABS, and will be used by the agency to complement the ABS equipment requirement.

The agency is not aware of, and TMA has not provided any data on, braking systems that provide stability and control during the braking-in-a-curve test that do not use a closed-loop control strategy as required by the ABS equipment requirements. Thus, the agency has decided to retain the ABS equipment requirements in FMVSS Nos. 105 and 121.

We have also concluded that these requirements do not stifle innovation. Moreover, TMA did not provide specific examples of how the existing equipment requirements would prevent the use of new technologies. The agency is aware of new technologies such as the electronically-controlled braking system (ECBS) that has been developed by the industry, and is involved through the Society of Automotive Engineers in learning more about the characteristics, mechanical and electronic design features, and performance of ECBS. If appropriate, future rulemaking efforts can be undertaken to accommodate these systems in FMVSS No. 121. However, the agency sees no reason to consider deletion or modification of the ABS equipment requirements from FMVSS Nos. 105 and 121 until it has specific knowledge on how, or if, existing requirements impact on the use of alternate braking system technologies.

TMA also stated that the proposed braking-in-a-curve test is not practicable. In TMA's view, NHTSA has not tested enough different axle combinations on single unit trucks to conclude that the proposed test is suitable for vehicles with different combinations of drive axles and “tag” and “pusher” axles. NHTSA acknowledges that it has not performed the braking-in-a-curve test with more than the most common axle combinations. However, it is the agency's position that it need not do so. Testing to date indicates that as long as wheel lock-up is prevented on at least the rearmost axle and the steer axle, the vehicle will remain stable during the braking-in-a-curve maneuver. None of the commenters, including TMA, submitted data to the agency indicating that NHTSA's testing on more conventional axle configurations is not applicable to other axle arrangements. Accordingly, NHTSA believes that the braking-in-a-curve test is practicable for less common axle configurations.

TMA and NTEA both objected to the burdens that adoption of the single unit braking-in-a-curve test would allegedly impose on final stage manufacturers. The agency's February 1995 FEA contained calculations of compliance costs for both the stopping distance and ABS requirements of the 1995 Final Rule. Using these costs as a starting point, the December 1999 NPRM contained an estimate for the cost of implementing the braking-in-a-curve test for single-unit trucks and buses. A stand-alone braking-in-a-curve test was estimated to cost $1500, and the incremental cost to incorporate the braking-in-a-curve test into a complete Standard No. 105 or 121 compliance test was set at $1,000. The cost per air-braked vehicle, when distributed across the affected population, was estimated to be about $18. In the later years, it was estimated that 30 compliance tests would be required annually, for a total cost of $360,000 (12 × 30 × $1,000). The cost per air-braked vehicle in those later years would be about $6.

In the case of hydraulic-braked single-unit vehicles, which were already subject to the existing test requirements of Standard No. 105, the 1995 FEA concluded that the incremental cost of a braking-in-a-curve test would be $1,000 per test. The FEA estimated that 10 manufacturers would have to complete 20 compliance tests each, the total cost for these vehicles would be approximately $200,000.00. Given annual sales of hydraulically braked medium and heavy trucks of approximately 195, 000 vehicles, we estimated the cost per vehicle for the braking-in-a-curve test for hydraulically braked vehicles at about $1. This cost per vehicle would be the same in the later years if manufacturers chose to test for each model year.

TMA estimates that stand-alone braking-in-a-curve testing costs between $4,500 and $6,000 per test. TMA states that a typical burnish alone costs approximately $1,500 while a full FMVSS No. 105 or 121 certification test costs $10,000 to $13,000. TMA did not provide a detailed breakdown of these costs, so it is difficult for NHTSA to ascertain how a braking-in-a-curve test, which is not disproportionately demanding in comparison to other tests in the sequence, could account for forty to fifty percent of the total cost of a complete FMVSS No. 105 or 121 certification test. TMA's comments also did not indicate what its members were currently expending in performing testing substantially similar to the test required by this final rule. Because, according to TMA's comments, TMA members are already using the SAE J1626 test procedure, TMA urged the agency to take steps to ensure that the FMVSS No. 121 and 105 braking-in-a-curve test conform as closely as possible to that test.

A review of the SAEJ1626 test procedure indicates that it contains a braking-in-a-curve test that is virtually identical to the braking-in-a-curve contained in this final rule. Therefore, it appears, to the extent that TMA members are already performing the SAE J1626 test, that the promulgation of this final rule should not impose additional test costs. If those manufacturers are not currently performing the SAE braking-in-a-curve test, the agency believes that TMA's claimed additional costs for adding the braking-in-a-curve test to FMVSS No. 105 and 121 are overstated.

Our own inquiries with test facilities indicate that adding the braking-in-a-curve test to the existing NHTSA test sequence should impose additional costs of approximately $1000, particularly since we are now specifying that the braking-in-a-curve test be performed only in the lightly loaded condition. In the agency's view, TMA's projected test costs of $4500 to $6000 for adding the braking in a curve test would be reasonable only in the situation where a vehicle has not been tested to SAE J1626, has already been tested to Standard No. 105 or 121, and was being transported to a test facility only for testing to the braking-in-a-curve test with newly-installed and freshly burnished brakes.

The NPRM indicated an estimated cost of $18 per air-braked single-unit vehicle for manufacturers to include stand-alone braking-in-a-curve testing in the first year and $6 in later years. In the case of hydraulically-braked vehicles, this figure is $1 per year for the first year and thereafter. As noted above, NHTSA does not agree that TMA's claimed costs are reasonable, particularly in light of the widespread use of the SAE J1626 test. However, if TMA's cost estimates were applied, then the per-vehicle cost could be as high as $54 to $72 per vehicle, provided the FEA and NPRM assumptions are valid on the number of tests to be conducted. However, as indicated above, NHTSA believes that testing costs as high as those projected by TMA represent an unlikely worst case and that the agency's projection are much more representative of actual conditions. We also note that the cost of ABS components and complete systems has declined approximately 30 percent in the 7 years since the cost-benefit analysis contained in the FEA was performed, thereby reducing the overall cost of compliance.

NTEA also commented on the costs of the agency proposal. The organization contends that the costs of complying with the braking-in-a-curve requirement would be particularly burdensome for its members. NTEA describes these members as small businesses that sell and install truck bodies on incomplete vehicles. Some of these vehicles are obtained from incomplete vehicle manufacturers in a nearly complete condition such as a chassis-cab, i.e., a truck that is complete except for a body. In the case of a chassis-cab, the final stage manufacturer typically adds a body to the portion of the vehicle behind the cab to produce a completed truck. Other configurations, such as cutaways, stripped chassis or chassis cowls require substantially more work before the vehicle is complete. NTEA believes that as much as 20 percent of all single unit trucks built in multiple stages are based on cutaways, stripped chassis or chassis cowls. According to the organization, when these types of incomplete vehicles are used, the final stage manufacturer can only certify the completed vehicle through testing. NTEA also stated that even where a chassis cab or other incomplete vehicle that has been certified by the incomplete vehicle manufacturer, the particular application for the vehicle may require sufficient changes so the final stage vehicle no longer complies with the specifications contained in the incomplete vehicle manufacturer's certification. In both cases, NTEA commented that the final stage manufacturer would then face the practical and financial obstacles of obtaining and paying for the required compliance tests.

NHTSA agrees that final stage manufacturers may not be able to rely on a certification provided by an incomplete vehicle manufacturer or that such a certification may not exist. However, it is our view that NTEA's claims are overstated, and like those presented by the TMA, present a worst-case scenario as the norm. We note first that chassis-cabs, for which pass through certification is available, represent a significant portion of the affected population. For instance, in the 1987 through 1989 model years, chassis-cabs represented 86 percent of sales of incomplete trucks with a GVWR above 10,000 pounds. Based on inquiries with manufacturers, NHTSA believes that this percentage is now much larger. Finally, even where pass-through certification is not available, incomplete vehicle manufacturers provide certification data for specific Federal motor vehicle safety standards that can be used by the final stage manufacturer to certify compliance without having to do any testing. Examination of this documentation shows that final stage manufacturers are usually provided with an envelope within which the vehicle center-of-gravity can be located and the axle loadings that can be used in order for the vehicle to meet either Standard No. 105 or Standard No. 121. Incomplete vehicle manufacturers strive to make this information as complete as possible in order to serve their customers. Therefore, NHTSA believes that occurrences where final stage manufacturers may not rely on pass-through certification or vehicle certification data from the incomplete vehicle manufacturer will be rare and would represent a significantly smaller percentage of the affected vehicles than the 20 percent claimed by NTEA.

NTEA also argues that the tremendous variety of vehicle configurations produced by its members compels the conclusion that NHTSA cannot require these member companies to perform the braking-in-a-curve test. This argument is based on two assertions. The first is that its members who do not use chassis-cabs and do not have pass-through certification have no choice but to perform compliance testing to demonstrate compliance with FMVSS Nos. 105 and 121. The second is that for those manufacturers, the costs of testing are so great as to make it impracticable. As testing must be both objective and practicable and NTEA's members have no choice but to test, the costs of the braking-in-a-curve test, in NTEA's view, preclude use of the test.

The NTEA position relies heavily on the decisions in two prior challenges the agency final rules, Paccar, Inc. v. National Highway Traffic Safety Administration, 573 F.2d 632 (9th Cir.), cert. denied, 439 U.S. 862, 99 S. Ct. 184, 58 L. Ed. 2d 172 (1978) and NTEA v. National Highway Traffic Safety Administration, 919 F.2d 1148, 1152-53 (6th Cir. 1990) where the courts rejected the agency's argument that compliance could be demonstrated by a showing of due care when tests are not performed. In both cases, NHTSA had conceded that the required tests were impracticable. This left the courts to consider the question of whether the due care standard provided sufficient guidance to manufacturers when no compliance test was available. The Paccar court, describing the due care standard as “amorphous,” found that NHTSA's “suggestions” of what constituted due care to be too imprecise to assist those trying to meet the standard at issue. In the NTEA case, the court followed the earlier Paccar decision and held that NHTSA could not impose a due care requirement on final stage manufacturers for whom the designated test was impracticable. NTEA argues that imposing the braking-in-a-curve test to final stage manufacturers is equally impracticable as the tests involved in both the Paccar and NTEA decisions. As the agency has not proposed any alternative to the test other than to establish compliance through due care, NTEA contends that NHTSA cannot now apply the braking-in-a-curve test to final stage manufacturers.

NHTSA does not agree with NTEA's analysis. We note first that NTEA did not provide any data supporting its position that the braking-in-a-curve test is so costly as to be impracticable. In fact, NTEA's comments do not contain any cost estimates for this test. In the absence of any cost estimates, NTEA stresses that the tremendous variety of vehicles made by final stage manufacturers who cannot rely on pass-through certification supports the premise that the braking-in-a-curve test is impracticable. According to NTEA, requiring final stage manufacturers to perform the braking-in-a-curve test is tantamount to requiring that every vehicle produced by these manufacturers must undergo this test. However, as is the case with cost estimates for the test itself, NTEA does not provide any data on the production of final stage manufacturers, including how many manufacturers produce models in extremely low volumes. In some instances, final stage manufacturers will be able to spread the cost of testing over the production run of similar vehicles. In other instances, manufacturers may have to perform testing of a single vehicle. Unlike the tests involved in both the Paccar and NTEA cases, the braking-in-a-curve test simply adds a new component to a braking test sequence that manufacturers are already required to perform. This incremental addition to the existing test sequence does not, in contrast to the test in the NTEA case, damage the test vehicle.

We estimate that the incremental cost of performing the braking-in-a-curve test to be approximately $1000.00. Manufacturers, even final stage manufacturers producing specialized vehicles on a bare chassis, rarely produce just one example of a particular design. The incremental cost of the braking-in-a-curve test is therefore likely to be spread over a production run of many vehicles. Even in the case of a production run of just one vehicle, we do not believe that this additional test cost is so high as to make the braking-in-a-curve test impractible, particularly since a buyer seeking a highly specialized vehicle is likely to be willing to pay more for the special features it offers.

NHTSA also believes that final stage manufacturers are capable of determining what constitutes the exercise of due care when certifying a vehicle and may rely on the exercise of that care in establishing certification without testing. While we must concede that NHTSA cannot make a single pronouncement of what constitutes due care for every circumstance in which a manufacturer certifies a vehicle, manufacturers, even final stage manufacturers, should be able to make this determination themselves. Vehicle manufacturers, both large and small, must make similar determinations for liability purposes every day. In so doing, they are aided by the application of industry and professional standards of care.

Final stage manufacturers are also provided with considerable guidance by the incomplete vehicle documents and body builder's guides provided by chassis manufacturers. Even where pass-through certification cannot be used, incomplete vehicle documents provide assurance of compliance if the completed vehicle meets the axle loading and center-of-gravity specifications provided by the incomplete vehicle manufacturer. If the final stage manufacturer stays within the guidelines provided by the incomplete vehicle manufacturer, the certification information supplied with the chassis can be used to certify compliance without doing any actual testing. Moreover, each chassis-cab manufacturer has an incentive to make the requirements for pass-through certification as broad as possible. The final stage manufacturer can then select from a variety of readily-available chassis-cab configurations and options (e.g., wheelbase, front and rear axle ratings) that can predictably meet the pass-through certification criteria.

When a final stage manufacturer completes a vehicle in a way that takes the vehicle outside the specifications of the IVD, then it cannot rely on the IVD in certifying compliance of the vehicle. Absent actual testing, alternate means of certification, such as engineering analysis or computer simulation, may be sufficient to allow a final stage manufacturer to certify compliance in good faith. For example, the manufacturer or supplier of the lift axle, upon request from a final stage manufacturer, may provide service brake retardation force characteristics for the axles it sells, based on dynamometer or other testing conducted by the axle manufacturer, which can be applied through simple calculations to determine compliance with service brake stopping distance requirements. That supplier can also provide grade-holding or drawbar test data to determine, using simple calculations, that the parking brake requirements in FMVSS No. 121, for example, are met at the increased GVWR as altered by the final stage manufacturer. Other braking requirements in the FMVSSs, including emergency brake stopping distance and brake actuation and release timing, can similarly be met by performing engineering analysis, working with chassis manufacturers and brake system and axle suppliers, and installing suitable equipment, to permit the final stage manufacturer to certify compliance with FMVSS Nos. 105 or 121. In many cases, such certification can be achieved without having to conduct actual road testing, or in some cases, with only portions of road or laboratory testing required (such as hiring a consultant to perform brake application and release timing tests at the final stage manufacturer's facilities).

NHTSA recognizes that there may be unusual vehicle configurations for which complete data are not available from vehicle or component suppliers that would enable an engineering analysis to be used for certification purposes. In such cases, computer simulations or actual road testing may be necessary for certification. Final stage manufacturers should consider these facts before deciding to build unusual vehicle configurations, since it is predictable that some vehicles cannot be certified using engineering analyses prior to purchasing a chassis, body, or other equipment.

Many FMVSSs contain alternative compliance options from which vehicle manufacturers may choose. In this final rule, there is an option to use a rollbar structure of up to 1,000 pounds for vehicles tested in the lightly-loaded condition. This has resulted in some problems when the agency conducts its compliance tests. For example, in a recent case, a vehicle was tested to FMVSS No. 135 and did not meet one of the requirements of that standard. When contacted about the non-compliance, the vehicle manufacturer stated that the vehicle should be compliance tested to FMVSS No. 105, since at that time that particular vehicle could be manufactured to either standard at the vehicle manufacturer's option. Thus, the agency was faced with having to test to two standards to determine which one applied.

To avoid confusion in the future, the agency is now conducting a review of compliance test condition options and anticipates that it will propose regulations to address this issue. However, until such rules are proposed and adopted, our practice will be to address optional test conditions in each standard. Thus, the agency is adding a statement to the general test conditions for both FMVSS No. 105 (S6.15) and 121 (S6.1.16) that directs a vehicle manufacturer to identify which option was selected for compliance test purposes. The agency does not believe that this makes any of the standard's requirements more stringent. Instead, it removes uncertainty from the compliance test program and reduces test costs to the agency.

The amendments contained in this final rule become effective October 10, 2003. With the exception of vehicles built in two or more stages, the braking-in-a-curve test requirements contained in this final rule apply to vehicles built on or after July 1, 2005. Vehicles built in two or more stages must meet the braking-in-a-curve test's requirements on or after July 1, 2006. Single unit trucks and buses are built in a wide variety of configurations to meet a diverse array of uses and needs. Many single unit trucks and buses are built to standard designs and configurations. However, many are specialty vehicles dedicated to specific purposes. Although anti-lock brake systems suitable for use in these vehicles are readily available, adaptation of these systems for particular applications will require sufficient leadtime to allow whatever development and testing may be needed. Moreover, as many single unit trucks and buses are manufactured in two or more stages, the agency notes that many final stage manufacturers are likely to rely on incomplete vehicle manufacturers to supply chassis that meet the new requirements. The agency has determined that the approximately two-year leadtime provided in this final rule provides sufficient time for intermediate stage manufacturers to develop complying incomplete vehicles in a sufficient number of configurations to meet the needs of final stage manufacturers. Finally, this final rule will make it necessary for some small final stage manufacturers to certify their vehicles with limited assistance from the intermediate vehicle manufacturer. The compliance date chosen by the agency affords these manufacturers sufficient time to take whatever steps may be required to meet the new requirements. Accordingly, the agency finds that good cause exists to make the compliance dates in this final rule effective more than one year after issuance.

Executive Order 12866, “Regulatory Planning and Review,” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

We have considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. The Office of Management and Budget did not review this rulemaking document under E.O. 12866. The document is also not considered to be significant under the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979).

This document amends 49 CFR Parts 571.105 and 571.121 by extending the application of the existing braking-in-a-curve performance test for anti-lock brakes to vehicles already required to be equipped with such brakes. By providing a compliance test, this final rule assures the realization of the benefits previously calculated when the requirement for installation of anti-lock brakes was issued in 1995. The compliance test contained in this final rule, which requires a vehicle to successfully negotiate a curved lane on a wetted low-friction surface, is identical to the existing agency test applicable to truck tractors, virtually identical to an existing Society of Automotive Engineers (SAE) test, and similar to other industry tests used to evaluate anti-lock brakes. Therefore, NHTSA believes that existing ABS systems, when properly installed and configured, will allow a vehicle to meet the requirements of the braking-in-a-curve test.

By extending the braking-in-a-curve test to non-articulated trucks and buses, this final rule adds a new road test requirement to an existing sequence of road tests for those vehicles. The costs of the new additional road test required by this final rule are (because the tests are identical) identical to the costs of requiring truck tractors to meet the same test. Based on our knowledge of this braking-in-a-curve test, the agency estimated the incremental cost of adding this new road test to the existing sequence of road tests for brakes to be approximately $1,000 per test. In most cases, this additional test cost will be spread over hundreds or thousands of vehicles. In instances in which the vehicle involved is a more specialized configuration, the cost of compliance testing, including the cost of including the braking-in-a-curve test in the existing road test sequence will be spread over fewer vehicles. Overall, NHTSA estimates that approximately 250,000 single unit trucks and 7,000 single-unit buses will be affected by this final rule. Testing costs were estimated at the time of the 1995 final rule to range from $1 to $18 per vehicle, depending on whether the vehicle has air brakes or hydraulic brakes and if the braking-in-a-curve test is as part of a full brake system compliance test or is performed alone.

When we promulgated the anti-lock brake requirements in 1995, the benefits of the anti-lock brake requirements were estimated to result in as many as 506 fewer annual fatalities, 27,413 fewer injuries and a reduction of property damage by as much as $553 million each year. The increased cost, which included the cost of anti-lock brakes and testing combined, was estimated to be $692 per vehicle. Almost all of that cost is for the brakes themselves. The cost of the brakes is attributable to the March 1995 final rule, not this one.

The agency has analyzed this rulemaking action in accordance with the principles and criteria set forth in Executive Order 13132. This final rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Accordingly, the requirements of section 6 of the Executive Order do not apply to this final rule.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.

This rule is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866 and does not involve decisions based on environmental, safety or health risks having a disproportionate impact on children.

Pursuant to Executive Order 12778, “Civil Justice Reform,” we have considered whether this final rule will have any retroactive effect. We conclude that it will not have such effect.

Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

The Administrator has considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. § 601 et seq.) and certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

This final rule extends application of an existing performance test for anti-lock brakes to a class of vehicles that are already required to have anti-lock brakes. The performance test, known as the braking-in-a-curve test, previously applied only to truck tractors and this final rule simply requires that single unit (non-articulated) trucks and buses must meet the same test. The primary cost effect of the requirements will be testing costs and will be on manufacturers of single unit (i.e., non-articulated) trucks and buses. Some single unit trucks and buses are produced by large manufacturers. Other single unit trucks and buses are produced in stages. In most cases, large manufacturers provide incomplete vehicles to smaller final stage manufacturers, who then produce the finished vehicle. Final stage manufacturers, those who use incomplete vehicles produced by larger manufacturers to produce specialty products, are generally small businesses. However, NHTSA believes that this final rule is not burdensome for final stage manufacturers. As eighty to ninety percent of the affected vehicles are completed from chassis-cabs where pass through certification is available, most final stage manufacturers will be able to rely on the prior certification and testing performed by an incomplete vehicle manufacturer and thus will not need to incur additional costs. The remaining final stage manufacturers will be required to perform testing or take other steps to ensure that the vehicles they produce will meet the new performance requirements. These manufacturers will have a variety of means available to accomplish this, including access to test and other data performed by chassis manufacturers, trade groups and equipment manufacturers. Therefore, the agency has determined that this final rule will not have a significant impact on these small entities and has not prepared a regulatory flexibility analysis.

We have analyzed this final rule amendment for the purposes of the National Environmental Policy Act and determined that it will not have any significant impact on the quality of the human environment.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule does not contain any new information collection requirements.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs us to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

This final rule adds anti-lock brake system performance requirements and a performance test for single unit trucks to 49 CFR 571.105 and 49 CFR 571.121. The amendments add these new requirements to an existing regulatory scheme that already contains an identical test for truck tractors. The tests adopted in this final rule are identical in most respects to the provisions of Section 5.3 of the Society of Automotive Engineers (SAE) Recommended Practice J1626, Braking, Stability, and Control Performance Test Procedures for Air and Hydraulic Brake Equipped Trucks. Any differences between the provisions of this final rule and SAE J1626 are minor in nature and do not add significantly to the test burdens of manufacturers. Accordingly, to the degree that the final rule does not adopt a voluntary consensus standard, the agency believes that no explanation is necessary.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule.

The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if we publish with the final rule an explanation why that alternative was not adopted.

This final rule will not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

The reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act by regulations at 50 CFR part 622. Those regulations set the commercial quota for red snapper in the Gulf of Mexico at 4.65 million lb (2.11 million kg) for the current fishing year, January 1 through December 31, 2003. The red snapper commercial fishing season is split into two time periods, the first commencing at noon on February 1 with two-thirds of the annual quota (3.10 million lb (1.41 million kg)) available, and the second commencing at noon on October 1 with the remainder of the annual quota available. During the commercial season, the red snapper commercial fishery opens at noon on the first of each month and closes at noon on the 10th of each month, until the applicable commercial quotas are reached.

Under 50 CFR 622.43(a), NMFS is required to close the commercial fishery for a species or species group when the quota for that species or species group is reached, or is projected to be reached, by filing a notification to that effect in the Federal Register. Based on current statistics, NMFS has determined that the available spring commercial quota of 3.10 million lb (1.41 million kg) for red snapper will be reached when the fishery closes at noon on August 7, 2003. Accordingly, the commercial fishery in the EEZ in the Gulf of Mexico for red snapper will remain closed until noon, local time, on October 1, 2003. The operator of a vessel with a valid reef fish permit having red snapper aboard must have landed and bartered, traded, or sold such red snapper prior to noon, local time, August 7, 2003.

During the closure, the bag and possession limits specified in 50 CFR 622.39(b) apply to all harvest or possession of red snapper in or from the EEZ in the Gulf of Mexico, and the sale or purchase of red snapper taken from the EEZ is prohibited. In addition, the bag and possession limits for red snapper apply on board a vessel for which a commercial permit for Gulf reef fish has been issued, without regard to where such red snapper were harvested. However, the bag and possession limits for red snapper apply only when the recreational quota for red snapper has not been reached and the bag and possession limit has not been reduced to zero. The 2003 recreational red snapper season opens on April 21, 2003, and closes on October 31, 2003. The prohibition on sale or purchase does not apply to sale or purchase of red snapper that were harvested, landed ashore, and sold prior to noon, local time, August 7, 2003, and were held in cold storage by a dealer or processor.

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.