The Commission is adopting final rules at 11 CFR 100.5(g)(5) to address the relationship between authorized committees and unauthorized committees that are associated with a Federal candidate or officeholder, more commonly known as “leadership PACs,” as well as other entities that are not Federal political committees, but are established, financed, maintained, or controlled by, or acting on behalf of, a Federal candidate or officeholder (collectively “leadership PACs”). Previously, the Commission has examined this relationship on a case-by-case basis to determine whether transactions between an authorized committee and a leadership PAC constituted in-kind contributions or resulted in affiliation under 11 CFR 100.5(g). In promulgating rules of general applicability, the Commission is changing its case-by-case approach and is deciding to analyze these transactions as in-kind contributions exclusively and not to engage in an affiliation analysis in examining the relationship between an authorized committee and a leadership PAC. As such, under the new rules, an authorized committee and a leadership PAC will not be deemed to be affiliated. Additionally, the adoption of these rules requires a change in the Commission's regulations at 11 CFR 102.2(b)(1)(i), which, in part, governs the disclosure of the names of all unauthorized committees affiliated with an authorized committee.

The Commission published a Notice of Proposed Rulemaking on December 26, 2002, 67 FR 78753 (“NPRM”). Written comments were due by January 31, 2003. Comments were received from: the Campaign and Media Legal Center; the Center for Responsive Politics and Common Cause and Democracy 21 (joint comment); Cleta Mitchell, Esq.; Paul E. Sullivan, Esq.; Republicans Members of the U.S. House of Representatives Tom DeLay, Roy Blunt, Deborah Pryce, David Dreier, John Doolittle, Jack Kingston, Tom Reynolds, Bob Ney, Tom Davis, Phil English, Greg Walden, Buck McKeon, Hal Rogers, and Pete Sessions, and the American Liberty PAC, American Success PAC, Federal Victory Fund, Help America's Leaders PAC, Pacific Northwest Leadership Fund, People for Enterprise, Trade, and Economic Growth, Together for Our Majority PAC, and the 21st Century Fund (joint comment); the Rely on Your Beliefs Fund; and Lyn Utrecht, Esq., Eric Kleinfeld, Esq., Jim Lamb, Esq., and Pat Fiori, Esq. (joint comment). The comments are available at http://www.fec.gov/register.htm under “Leadership PACs.” The Commission held a public hearing on February 26, 2003, at which it heard testimony from seven witnesses: Donald McGahn, Esq.; Cleta Mitchell, Esq.; Paul E. Sullivan, Esq.; Lawrence M. Noble, Esq.; Paul Sanford, Esq.; Glen Shor, Esq.; and Donald Simon, Esq. Transcripts of the hearing are available at the website identified above. Please note that, for purposes of this document, “comment” and “commenter” apply to both written comments and oral testimony at the public hearing.

Under the Administrative Procedures Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final rules to the Speaker of the House of Representatives and the President of the Senate, and publish them in the Federal Register at least 30 calendar days before they take effect. The final rules that follow were transmitted to Congress on November 24, 2003.

The Federal Election Campaign Act of 1971, as amended (“FECA”), 2 U.S.C. 431 et seq. , defines “authorized committee” as “the principal campaign committee or any other political committee authorized by a candidate under section 432(e)(1) of this title to receive contributions or make expenditures on behalf of such candidate.” 2 U.S.C. § 431(6); see also 11 CFR 100.5(f)(1). “Unauthorized committee” is defined in the Commission's regulations as “a political committee which has not been authorized in writing by a candidate to solicit or receive contributions or make expenditures on behalf of such candidate , or which has been disavowed pursuant to 11 CFR 100.3(a)(3).” 11 CFR 100.5(f)(2) (emphasis added). An unauthorized committee may accept contributions in greater amounts than those allowed to be accepted by an authorized committee, compare 2 U.S.C. 441a(a)(1)(C) with 2 U.S.C. 441a(a)(1)(A), and, if it attains multicandidate committee status, 1 may contribute greater amounts to Federal candidates than those allowed to be contributed by an authorized committee. Compare 2 U.S.C. 441a(a)(2)(A) with 2 U.S.C. 441a(a)(1)(A).

The term “leadership PAC” lacks a formal definition. Generally, such PACs “are formed by individuals who are Federal officeholders and/or Federal candidates. The monies these committees receive are given to other Federal candidates to gain support when the officeholder seeks a leadership position in Congress, or are used to subsidize the officeholder's travel when campaigning for other Federal candidates. The monies may also be used to make contributions to party committees, including State party committees in key states, or donated to candidates for State and local office.” Notice of Proposed Rulemaking on Leadership PACs , 67 FR 78753, 78754 (Dec. 26, 2002) (citations omitted).

Pursuant to 2 U.S.C. 441a(a)(5), “all contributions made by political committees established or financed or maintained or controlled by any corporation, labor organization, or any other person, including any parent, subsidiary, branch, division, department, or local unit of such corporation, labor organization, or any other person, or by any group of such persons, shall be considered to have been made by a single political committee.”

Under the Commission's regulations, committees that are affiliated, that is, committees that are established, financed, maintained, or controlled by the same corporation, labor organization, person or group of persons, et al. , share a single limitation on the amount they can accept from any one contributor. 11 CFR 100.5(g), 110.3(a)(1), 110.3(a)(3)(ii). Typically, under FECA and the Commission's regulations, the Commission has treated “leadership PACs” as unauthorized political committees, and usually has not found them to be affiliated with authorized committees sharing contribution limits of affiliated committees.

In 1986 the Commission began a rulemaking to address affiliation in general, including leadership PACs. The Commission determined in 1989, however, to maintain its existing approach, noting that “the Commission has concluded that this complex area is better addressed on a case-by-case basis.” Affiliated Committees, Transfers, Prohibited Contributions, Annual Contribution Limitations and Earmarked Contributions; Final Rule , 54 FR 34098, 34101 (Aug. 17, 1989). The Commission embarked on this rulemaking in 2002, in part, to clarify its historic approach in examining the relationship and transactions between a candidate's authorized committee and a leadership PAC associated with that candidate. NPRM at 78755.

The NPRM set forth three different ways of addressing the question of affiliation between an authorized committee and a leadership PAC. The first two proposals (Alternatives A and B) would have established factors for finding affiliation, with all of the consequences of affiliation applying as a result. The third proposal (Alternative C) sought to codify the Commission's existing practice.

Alternative A set out individual factors in proposed section 100.5(g)(5)(i), the presence of any one of which would result in affiliation. The factors were: (1) The candidate or officeholder, or their agent has signature authority on the unauthorized committee's checks; (2) funds contributed or disbursed by the unauthorized committee are authorized or approved by the candidate or officeholder or their agent; (3) the candidate or officeholder is clearly identified as described in 11 CFR 100.17 on either the stationery or letterhead of the unauthorized committee; (4) the candidate, officeholder or his campaign staff, office staff, or immediate family members, or any other agent, has the authority to approve, alter or veto the unauthorized committee's solicitations, contributions, donations, disbursements or contracts to make disbursements; and (5) the unauthorized committee pays for travel by the candidate, his campaign staff or office staff in excess of $10,000 per calendar year. The second factor would have been satisfied even if the officeholder or candidate or agent authorized or approved only some and not all of the disbursements.

Alternative B described two separate tests under which affiliation would have been found. Under proposed section 100.5(g)(5)(i)(A), affiliation would have existed if any one of the following factors were present: (1) The candidate or officeholder has signature authority on the entity's checks; (2) the candidate or officeholder must authorize or approve disbursements over a certain minimum amount; (3) the candidate or officeholder signs solicitation letters and other correspondence on behalf of the entity; (4) the candidate or officeholder has the authority to approve, alter or veto the entity's solicitations; (5) the candidate or officeholder has the authority to approve, alter, or veto the entity's contributions, donations, or disbursements; or (6) the candidate or officeholder has the authority to approve the entity's contracts. Under this alternative, the authorized committee and the leadership PAC would have been considered affiliated because the candidate or officeholder exercised sufficient influence to conclude that the candidate or officeholder established, financed, maintained, or controlled the leadership PAC.

If none of the above factors were present, affiliation could still be found under Alternative B of proposed section 100.5(g)(5)(i)(B) if any three of the following factors were present: (1) The campaign staff or immediate family members of the candidate or officeholder have the authority to approve, alter or veto the entity's solicitations; (2) the campaign staff or immediate family members of the candidate or officeholder have the authority to approve, alter, or veto the entity's contributions, donations, or disbursements; (3) the campaign staff or immediate family members of the candidate or officeholder have the authority to approve the entity's contracts; (4) the entity and the candidate or officeholder's authorized committees share, exchange, or sell contributor lists, voter lists, or other mailing lists directly to one another, or indirectly through the candidate or officeholder to one another; (5) the entity pays for the candidate or officeholder's travel anywhere except to or from the candidate or officeholder's home State or district; (6) the entity and the candidate or officeholder's authorized committees share office space, staff, a post office box, or equipment; (7) the candidate or officeholder's authorized committee(s) and the entity share common vendors; and (8) the name or nickname of the candidate or the officeholder, or other unambiguous reference to the candidate or officeholder appears on either the entity's stationery or letterhead.

Alternative C would have largely continued the Commission's current treatment of leadership PACs by treating a leadership PAC as affiliated with a candidate or officeholder's authorized committees unless the leadership PAC undertook activities that would indicate its primary purpose is not to influence the nomination or election of the candidate or officeholder involved. These activities are: (1) Only making disbursements to raise funds for party committees or to influence the nomination or election of persons other than the candidate or officeholder involved; (2) avoiding references to the candidacy or potential candidacy of the sponsoring candidate or officeholder in any solicitations, communications or other materials of the unauthorized committee; (3) requiring that the candidate or officeholder make no reference to his or her candidacy or potential candidacy during his or her speeches or appearances on behalf of the leadership PAC; and (4) requiring that specified expenses would have to be reimbursed by a presidential campaign committee if the candidate or officeholder becomes a presidential candidate. If the leadership PAC did not conform its activities to these limitations, under Alternative C, it would be deemed to be an authorized committee.

One commenter thought that Alternative A was contrary to FECA and not mandated by the Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81(2002) (“BCRA”). Another commenter believed that this alternative would defeat the purpose of leadership PACs, and that it was sufficiently onerous that Federal officeholders could not and would not establish them. A third commenter agreed with this latter point, arguing that its terms went beyond what the authors of BCRA envisioned. One commenter disagreed with Alternative A's general structure, arguing that no one single factor is sufficient to prove affiliation absent express authorization by the candidate.

Other commenters disapproved of Alternative A because it did not allow for sufficient opportunities to find affiliation. One commenter stated that the alternative contained only a per se list and thus ignored numerous factors that indicated a relationship existed between two committees. Another commenter argued that Alternative A was insufficiently comprehensive to encompass all relationships covered by the statutory term “established, financed, maintained, or controlled.” Similarly, one commenter supported many of the factors of Alternative A, but believed it did not include enough factors and was not sufficiently flexible.

With respect to Alternative B, one commenter argued that it also was contrary to FECA and not mandated by BCRA. Another commenter felt that it essentially defeated the purpose of leadership PACs and was sufficiently onerous that the only conclusion to be drawn is that Federal officeholders could not and would not establish them. A third commenter agreed with this latter point, stating that Alternative B was a more burdensome version of Alternative A.

The commenter who disagreed with the general structure of Alternative A concurred that most of the eight factors listed should be considered in determining affiliation, but thought setting a specific number to be met could present problems. Of the three commenters who thought Alternative A was not sufficiently comprehensive, all three supported the structure of Alternative B, but did not feel it included enough factors. Each of these commenters proposed variations on Alternative B that included additional factors. Two of these commenters added a third option for finding affiliation, based on a “totality of the circumstances.” The commenter who did not include such an option argued that the rule should only apply to political committees under FECA and political organizations organized under 26 U.S.C. 527.

One commenter stated that Alternative C was a useful starting point for addressing the issue of the status of leadership PACs in the related candidate's own election. Another commenter thought that Alternative C provided a basis for a reasonable set of criteria defining and governing leadership PACs. This commenter suggested that certain amendments to Alternative C would be appropriate: (1) Specifically authorizing leadership PACs to contribute to State and local candidates and political parties within the limits and pursuant to State laws; (2) eliminating provisions that prohibit references to the related Federal candidate in solicitations or public appearances; and (3) requiring candidates and officeholders who become candidates for President and qualify for primary or general election financing to repay to the presidential campaign committee any expenses paid by the leadership PAC for travel, polling, staff, or other expenses made on behalf of the presidential campaign effort. Another commenter stated that Alternative C's proposed conditions are cumbersome and do not significantly improve the Commission's regulatory framework. This commenter suggested that the Commission should presume a leadership PAC is unaffiliated unless its activities are for the purpose of influencing the election of the connected Federal candidate.

Another commenter argued that Alternative C continues a current system that fails to properly consider affiliation, and that the mere absence of a leadership PAC attempt to influence the specific officeholder's election should not be conclusive evidence that the committees are not affiliated. This commenter argued that such a standard ignores the “established, financed, maintained, or controlled by” test in FECA. Two other commenters disapproved of Alternative C because it maintains the status quo.

The Commission also sought comment as to how BCRA impacted a potential rule governing leadership PACs. Five commenters took issue with a suggestion in the NPRM that BCRA might require a finding of affiliation between an authorized committee and a leadership PAC. One commenter noted that one of BCRA's sponsors, Senator John McCain, had stated that, under BCRA's terms, “[a] Federal officeholder or candidate is prohibited from soliciting contributions for a Leadership PAC that do not comply with Federal hard money source and amount limitations. Thus, the Federal officeholder or candidate could solicit up to $5,000 per year from an individual or PAC for the Federal account of the Leadership PAC and an additional $5,000 from an individual or PAC for the non-Federal account of the Leadership PAC.” 148 Cong. Rec. S2140 (Mar. 20, 2002). Thus, this commenter argued that BCRA does not contemplate the automatic affiliation of leadership PACs with authorized committees.

This same commenter noted that a number of leaders of the House of Representatives, all of whom voted in favor of BCRA, have leadership PACs. One commenter argued that BCRA does not require or even suggest that the Commission change its approach with respect to leadership PACs and the proper focus is on whether the activities at issue are “for the purpose of influencing the election of the individual who is connected with the PAC.” In contrast, other commenters argued for an interpretation that BCRA prohibits Federal candidates and officeholders from maintaining soft money leadership PACs.

The Commission determined in the Soft Money rulemaking that BCRA does not allow a Federal candidate or officeholder to raise up to $5,000 separately for the Federal and non-Federal accounts of leadership PACs directly or indirectly established, financed, maintained, or controlled by that Federal candidate or officeholder. Rather, for their leadership PACs, they are limited to raising a total of $5,000 from any one source, per election cycle. See Final Rules on Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 FR 49064, 49107 (July 29, 2002) (“Although candidate PACs and Leadership PACs are not specifically mentioned, the legislative history indicates that 2 U.S.C. 441i(e)(1) is intended to prohibit Federal officeholders and candidates from soliciting any funds for these committees that do not comply with FECA's source and amount limitations.”) Therefore Federal candidates will not violate BCRA merely by establishing and raising money for their leadership PACs within the amount limitations and source prohibitions of FECA and BCRA.

Two commenters, a leadership PAC and a joint comment from leadership PACs and Members of the House of Representatives, stated that their support of challengers helped those candidates who are often at a fundraising disadvantage when compared to incumbents. 2 One commenter argued that leadership PAC support for open seat candidates is sometimes critical to the viability of these candidates. Another commenter urged that the rule should be clear to “encourage and validate” the important role of these committees. This same commenter argued that leadership PACs should be encouraged as an avenue for Federal officeholders to support local and State parties and candidates in a manner that is disclosed to the Commission. This commenter also noted the importance of leadership PACs in their role of replacing the loss of non-Federal funds due to BCRA.

In response to the commenters arguing that BCRA precludes the result of the final rule issued today, the Commission concludes that BCRA's structure and wording answer these concerns. BCRA contemplates Federal candidate control of unauthorized committees. Otherwise, there would be no need to apply “hard money” limits. 2 U.S.C. 441i(e)(1). Thus, BCRA cannot be read generally to prohibit leadership PACs or to require that they be affiliated with a candidate's authorized committee. To the contrary, had Congress believed it was mandating a per se rule of affiliation between the two types of committees, BCRA would have gone further to require that contributions to those committees be aggregated with contributions to the candidate's authorized committee. BCRA requires no such aggregation.

In previous advisory opinions and compliance matters, the Commission has examined leadership PACs whose activities were significantly intertwined with the activities of a Federal candidate's authorized committee. In such circumstances, the Commission had two competing, but equally valid, theories it could pursue. The Commission could consider whether the leadership PAC's actions made it affiliated with the authorized committee, or the Commission could consider the committees unaffiliated and determine whether the leadership PAC made in-kind contributions to the authorized committee. The Commission has declined in several instances to find that a leadership PAC was affiliated with a candidate's authorized committee, even where it was apparent that the committees were controlled by the same person. See affiliation factors at 11 CFR 100.5(g). Instead, the Commission exercised its discretion to determine that a leadership PAC made in-kind contributions to the related Federal candidate's campaign. Nonetheless, the Commission maintained its discretion to pursue either of the two competing approaches. In making these findings, the Commission typically found that committees formed by a candidate to further his or her campaign were affiliated; those formed for other purposes were not.

New § 100.5(g)(5) clarifies the relationship between an authorized committee and a leadership PAC by removing the possibility that a candidate's authorized committee can be affiliated with an entity that is not an authorized committee, even if the candidate established, financed, maintained, or controlled that entity.

In promulgating this final rule, the Commission has considered the 25-year history of Commission enforcement and policy precedent ( see, e.g. , Advisory Opinions 1978-12, 1984-46, 2003-12; MURs 1870, 2897 and 3740) and the comments received in response to the NPRM. Alternatives A and B, with per se affiliation factors, would have been too rigid and overbroad. They would have created a basis for affiliation in situations where interaction between an authorized committee and a leadership PAC would not merit such designations if those interactions were undertaken by committees where neither committee was authorized in writing by the candidate. Although Alternative C reflects the Commission's historic approach to leadership PACs, it suggests that the Commission would examine them on a case-by-case basis. While the Commission has discretion to pursue either an affiliation or in-kind contributions analysis under FECA on a case-by-case basis when considering the circumstances surrounding leadership PACs, the Commission has decided, as a matter of policy, to adopt the in-kind contribution analysis as a rule of general applicability as they pertain to leadership PACs. See Michigan v. EPA , 268 F.3d 1075, 1087 (D.C. Cir. 2001) (discussing agency's discretion to choose rulemaking or case-by-case adjudicative procedure, citing SEC v. Chenery , 332 U.S. 174, 203 (1947) and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 543 (1978)).

This decision does not affect affiliation between an authorized committee and any joint fundraising committee under 2 U.S.C. 432(e)(3)(ii) and 11 CFR 102.13(c)(1). Nor does it affect the ability of a national committee of a political party to be designated as the principal campaign committee of that party's presidential candidate under 2 U.S.C. 432(e)(3)(i) and 11 CFR 102.13(c)(2). Nor does this rule allow a leadership PAC to provide support to the Federal candidate or officeholder with whom it is associated in amounts different than those available to other similar political committees. Rather, a leadership PAC's provision of funds, goods, or services to any authorized committee will be treated as a contribution as defined in 2 U.S.C. 431(8), and thus limited to the amount at either 2 U.S.C. 441a(a)(1)(A) or 441a(a)(2)(A) per election, depending on whether the leadership PAC has attained multicandidate committee status, unless the activity falls within an exception to the definition of “contribution” or “expenditure,” or is a fair market value exchange of goods or services for the usual and normal charge. See also 2 U.S.C. 431(8).

The Commission considered the issue of whether its treatment of leadership PACs comports with the purpose of the affiliation rule: the protection of contribution limitations. In adopting new § 100.5(g)(5), the Commission is applying the affiliation rule separately to distinct types of political committees to enforce different contribution limits. Typically, committees that become affiliated already operate under similar limitations on the amounts of contributions that they can make and accept. The fact of affiliation simply means that they now share one common limitation. One of the complications in affiliating authorized committees with leadership PACs is that these types of committees are subject to different amount limitations for making and receiving contributions. Requiring them to abide by a single contribution limit means choosing a limitation that is not intended for one of those committees. 3 Consequently, it is logical to view an authorized committee and a leadership PAC as separate committees, and transactions between them that benefit the authorized committee as contributions and not as a basis to find them affiliated.

Further, the consequences of new 11 CFR 100.5(g)(5) with respect to leadership PAC contribution limits are no different after the promulgation of this rule than before. Leadership PACs operating as unauthorized political committees—that is, political committees whose purpose is to support more than one Federal candidate—may receive up to $5000 per year from individuals, other persons, and multicandidate committees, and once they qualify as multicandidate committees, may contribute up to $5000 per candidate per election. See 2 U.S.C. 432(e)(3), 441a(a)(1)(C) and 441a(a)(2)(A); 11 CFR 110.1(d) and 110.2(b). Although such leadership PACs are not exposed to the consequences of affiliation with authorized committees, leadership PACs may still be deemed affiliated with other unauthorized committees. See 11 CFR 100.5(g)(2), (3), and (4); see also Advisory Opinion 1990-16 (where the Commission found that a committee organized under State law and devoted to supporting candidates for election to State and local office, that had previously been the campaign committee of the State's then-governor, was affiliated with a Federal political committee that had been organized by the governor and that had as its purpose supporting candidates for Federal office). Thus, the rule in new 11 CFR 100.5(g)(5) provides no new avenue for circumventing the separate contribution limitations applicable to authorized and unauthorized committees.

The Commission concludes that since its first examination of leadership PACs, these committees cannot be assumed to be acting as authorized committees. Rather, these PACs are worthy of the same treatment as other unauthorized committees that operate without presumptions as to their status. To the extent that leadership PACs are used to pay for costs that could and should otherwise be paid for by a candidate's authorized committee, such payments are in-kind contributions, subject to the Act's contribution limits and reporting requirements.

The Commission also concludes that in instances when leadership PAC activity results in an in-kind contribution to a candidate, Commission regulations adequately regulate such activity. 11 CFR 100.52(a) and (d), 109.20, 109.21, 109.23, 109.37; see MUR 5376 (Campaign America/Quayle); Report of the Audit Division on Bauer for President 2000, Inc., FEC Agenda Doc. No. 02-37, dated May 8, 2002 (considered in the Open Sessions on May 16, 2002 and May 23, 2002) (recommendations with respect to Campaign for Working Families PAC); MUR 3367 (Committee for America/Haig). These regulations, which define “contribution” and which address coordinated activities, will serve to ensure that leadership PACs are not used improperly to support the “associated” candidate's campaign.

The final rule at 11 CFR 100.5(g)(5) properly places the enforcement focus on the activity at issue. To support the proposition that rules governing in-kind contributions properly capture this activity, the Commission need look no further than its recently-issued final rule “to treat certain expenses incurred by multicandidate committees as in-kind contributions benefiting publicly funded Presidential candidates.” Final Rules on Public Financing of Presidential Candidates and Nominating Conventions, 68 FR 47386, 47407 (Aug. 8, 2003); 11 CFR 9034.10; 11 CFR 110.2(l). Although that rule was aimed at a somewhat different range of activity, the explanation and justification stated, “For other situations not addressed [in the new regulations governing pre-candidacy activity with a nexus to a Presidential campaign], including when expenditures are paid for by multicandidate committees after candidacy, the general provisions describing in-kind contributions at 11 CFR 100.52(a) and (d), 109.20, 109.21, 109.23, and 109.37 would apply.” Final Rules on Public Financing of Presidential Candidates and Nominating Conventions, 68 FR at 47407. The Commission intends symmetry between its regulations with respect to leadership PACs and its new rules applicable to certain pre-candidacy activity benefiting Presidential candidates by multicandidate committees.

The Commission also noted that the final rules in the Public Financing of Presidential Candidates and Nominating Conventions, 68 FR at 47408, “in no way address situations where the Commission determines that the multicandidate political committee and the candidate's principal campaign committee are affiliated under 11 CFR 100.5(g)(4).” With the new rule, the Commission has decided to examine these situations with a contribution analysis, instead of an affiliation analysis.

By its terms, new 11 CFR 100.5(g)(5) also applies to entities that are not political committees. Recently, the Commission examined the situation of a State ballot initiative committee that had been established by a Federal candidate and officeholder, but was not a registered Federal committee. AO 2003-12. The Commission found that the relationship between the ballot initiative committee and the Federal candidate and officeholder was sufficiently similar to the relationship between a traditional leadership PAC and its connected Federal candidate to warrant treating the Federal candidate and officeholder and the ballot initiative committee in the same manner as the Commission had historically treated leadership PACs for affiliation purposes. Therefore, under new 11 CFR 100.5(g)(5), the Commission would not examine the transactions between the Federal candidate and officeholder and the ballot initiative committee to determine whether the ballot initiative committee is affiliated with the Federal candidate and officeholder's authorized committee. Rather, the Commission would analyze the facts to determine whether the ballot initiative committee made an in-kind contribution to the Federal candidate and officeholder. Furthermore, the Commission will continue to use the affiliation factors in 11 CFR 300.2(c) to determine whether the Federal candidate and officeholder or his agent directly or indirectly established or finance or maintained or controlled the ballot initiative committee for purposes of the restrictions on the solicitation, receipt, transfer or disbursement of non-Federal funds in 2 U.S.C. 441i(e).

As the Commission noted earlier, these new rules merely codify the discretion the Commission has exercised when the question of affiliation between an authorized committee and an unauthorized committee has come before it in the past. Thus, the final rules supersede Advisory Opinions 1978-12, 1984-46, 1987-12, 1990-7, 1991-12, and 1993-22, only to the extent these advisory opinions suggest that an authorized committee can be affiliated with an unauthorized committee.

The Commission's previous reporting regulations at 11 CFR 102.2(b)(1)(i) provided, in part, for the eventuality of an authorized committee being affiliated with an unauthorized committee, and mandated that a principal campaign committee disclose on its statement of organization the names and addresses of all unauthorized committees with which it is affiliated. Because the new rule in 11 CFR 100.5(g)(5) eliminates the possibility of a principal campaign committee, i.e. an authorized committee, being affiliated with an unauthorized committee, the provisions of § 102.2(b)(1)(i) addressing such a possibility are no longer valid. Accordingly, the Commission is revising § 102.2(b)(1)(i) to eliminate these provisions. Pursuant to the revised § 102.2(b)(1)(i), a principal campaign committee will still be required to disclose the names and addresses of all other authorized committees that have been authorized by its candidate. While this revision was not addressed in the NPRM, it is a logical and technical change necessitated by the new 11 CFR 100.5(g)(5).

The Commission certifies that the final rules do not have a significant economic impact on a substantial number of small entities. The basis of this certification is that these rules only codify current Commission practice with respect to whether certain entities established, financed, maintained, controlled by, or acting on behalf of, Federal candidates, are affiliated with authorized committees of Federal candidates. Accordingly, these rules do not impose any additional costs on the contributors or the committees. Further, the primary purpose of the proposed revisions is to clarify the Commission's rules regarding affiliation and limits on contributions. This does not impose a significant economic burden because entities affected are already required to comply with the Act's requirements in these areas.

A proposal to amend 14 CFR part 39 to add an AD for Eurocopter France Model AS332C, L, L1, and L2 helicopters was published as an NPRM in the Federal Register on October 31, 2001 (66 FR 54960). That NPRM would have required inspecting the pedal unit lever for a crack and replacing any unairworthy lever, P/N 332A27-2344-20, with an airworthy lever. After publication of that NPRM, we determined that we should have incorporated the latest manufacturer's service information into our proposal, eliminated the proposed borescope inspection, and mandated terminating actions. Since those changes expanded the scope of the originally proposed rule, the FAA determined that it was necessary to reopen the comment period to provide additional opportunity for public comment. A supplemental NPRM was published in the Federal Register on March 7, 2003 (68 FR 11014). That action proposed to require inspecting the pedal unit lever, part number (P/N) 332A27.2344.20, that has not been modified in accordance with MOD 0726179, for a crack at specified time intervals by a dye-penetrant inspection, and replacing any cracked lever with an airworthy lever before further flight. That action also proposed to provide a terminating action for the AD through a modification of the pedal unit.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter Model AS332C, L, L1, and L2 helicopters. The DGAC advises of several cases of failure of the lever, which might lead to temporary loss of access to the brake pedals during aircraft taxiing or difficulties in ensuring the yaw control of the aircraft in flight.

Eurocopter has issued Eurocopter Alert Service Bulletin No. 67.00.19, dated July 23, 2001, which describes the dye-penetrant inspection of the pedal units, and Eurocopter Alert Service Bulletin No. 67.00.20, dated June 8, 2001, which describes replacing the pilot's and co-pilot's pedal adjustment levers. The DGAC classified these alert service bulletins as mandatory and issued AD Nos. 2000-487-017(A)R1 and 2000-486-077(A)R1, both dated September 5, 2001, to ensure the continued airworthiness of these helicopters in France.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed except the compliance time for the terminating action was proposed to be before June 5, 2003. However, since that date has already passed, we are extending that date to 90 days after the publication of this AD. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. However, for clarity and consistency in this final rule, we have retained the language of the NPRM and SNPRM regarding that material.

The FAA estimates that 3 helicopters of U.S. registry will be affected by this AD, and that it will take approximately 5 work hours to accomplish the dye-penetrant inspection; 5 work hours to remove and replace the pedal unit assembly with a new pedal assembly, or 6 work hours to remove, modify, and replace the modified pedal unit assembly. The average labor rate is $60 per work hour. Required parts will cost approximately $4,990 for replacing a cracked pedal unit assembly with a new pedal unit assembly, or $290 for modifying the installed pedal unit. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $16,770 to replace the pedal unit assembly throughout the entire fleet, or $2,730 to modify the pedal unit for the entire fleet, assuming one dye-penetrant inspection regardless of which method of compliance is applicable.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (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) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend 14 CFR part 39 to include an AD for the specified model helicopters was published in the Federal Register on July 16, 2003 (68 FR 41972). That action proposed to require, within 50 hours time-in-service (TIS) or 1 month, whichever occurs first, inspecting the fuel air vent hoses for chafing and fuel leakage in the interference areas and replacing leaking air vent hoses. It also proposed to require inspecting the length of the latch support attachment screws on both passenger doors, and if necessary, installing airworthy attachment screws. Finally, the AD proposed to require installing spacers to prevent interference with the latch support attachment screws and the removal of one tyrap clamp support.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter Model AS 365N, N1, N2, and AS 365 N3 helicopters. The DGAC advises of a report of a fuel leak that was discovered on the cabin floor of an aircraft, at the air vent hose, at the 9° frame, on the pilot's side. The fuel leak was caused by interference between the air vent hose and the attachment screws of the latch support of the right-hand front passenger door.

Eurocopter has issued Alert Telex No. 28.00.31, dated January 14, 2003, that describes:

• Checking the condition of the air vent hoses in the interference areas for damage to the external protection of the air vent hoses and fuel leaks, and if leaks are discovered, replacing the hoses and if the external protection is damaged, replacing the hose at 500 hours time-in-service (TIS);

• Protecting the air vent hoses in the interference areas with adhesive tape;

• Checking the attachment screws of the latch support on the right-hand and left-hand sides for correct length;

• On the right-hand side of the aircraft, installing spacers to prevent any interference between the attachment screws of the latch support and the air vent hose; and

• On the left-hand side of the aircraft, removing one of the tyrap clamp supports that secure the air vent hose to the 9° frame at the latch support.

The DGAC classified this alert telex as mandatory and issued AD 2003-028(A), dated February 5, 2003, to ensure the continued airworthiness of these helicopters in France.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that this AD will affect 45 helicopters of U.S. registry and the actions will take approximately 3 work hours per helicopter to accomplish at an average labor rate of $60 per work hour. Two additional work hours will be required to replace a hose. Required parts will cost approximately:

• $229 for the air vent hose, part number (P/N) 365A55-3044-07 (3 each estimated);

• $139 for the air vent hose, P/N 365A55-3044-09 (3 each estimated);

• $1 for the spacer, P/N E0688-02 (2 each required per helicopter);

• $1 for the screw, P/N 22256BC040012L (4 each per helicopter);

• $1 for the screw, P/N 22256BC050012L (2 each per helicopter); and

• $.50 for the clamp, P/N E0043-1C0 (2 each per helicopter).

Based on these figures, we estimate the total cost impact of the AD on U.S. operators would be $9,609, assuming that six air vent hoses (3 of each kind) will need to be replaced and 2 spacers, 6 screws, and 2 clamps will be replaced in the entire fleet.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (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) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

On October 17, 1997, the FAA issued AD 97-22-05, amendment 39-10176 (62 FR 55730, October 28, 1997), applicable to certain McDonnell Douglas Model DC-9-14, DC-9-15, DC-9-15F, DC-9-21, DC-9-31, DC-9-32, DC-9-32 (VC-9C), DC-9-32F, DC-9-34, DC-9-34F, DC-9-32F (C-9A, C-9B), DC-9-41, and DC-9-51 airplanes, to require modification of the emergency internal release system of the tailcone and the accessory compartment. That action was prompted by a report that, due to failure of the tailcone release system, the tailcone did not deploy on an airplane during an emergency evacuation. The actions specified by that AD are intended to ensure that the emergency internal release system of the tailcone performs its intended function in the event of an emergency evacuation. The requirements of that AD are also intended to prevent people on board the airplane from striking their heads on exposed metal frames in the tailcone area, which could cause injury and delay or impede their evacuation during an emergency.

Since the issuance of AD 97-22-05, the FAA was advised that two Model DC-9-31 airplanes with manufacturer's fuselage numbers 1039 and 1046, and two Model DC-9-32 airplanes with manufacturer's fuselage numbers 0268 and 0505, were omitted inadvertently from the effectivity Section 1.A. of McDonnell Douglas DC-9 Service Bulletin 25-331, dated December 10, 1993, which is one of the two service bulletins referenced in AD 97-22-05.

Therefore, we have determined that it is necessary that the modification of the tailcone accessory compartment described in Boeing Service Bulletin DC9-25-331 be accomplished to adequately address the identified unsafe condition ( i.e. , prevent people on board the airplane from striking their heads on exposed metal frames in the tailcone area, which could cause injury and delay or impede their evacuation during an emergency) on these additional airplanes.

The FAA has reviewed and approved Boeing Service Bulletin DC9-25-331, Revision 02, dated December 10, 2002, which describes procedures for modifying the tailcone accessory compartment.

The modification procedures described in this revision are essentially identical to the procedures in the original issue of the service bulletin, which was referenced in AD 97-22-05 as an appropriate source of service information for accomplishing the required modification of the accessory compartment. However, Revision 02 of the service bulletin adds additional airplanes to the effectivity listing that are subject to the identified unsafe condition. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Accomplishment of the modification of the tailcone accessory compartment specified in AD 97-22-05 is acceptable for compliance with the requirements of this AD.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design that may be registered in the United States at some time in the future, this AD is being issued to prevent people on board the airplane from striking their heads on exposed metal frames in the tailcone area, which could cause injury and delay or impede their evacuation during an emergency. This AD requires modification of the tailcone accessory compartment. The actions are required to be accomplished in accordance with Boeing Service Bulletin DC9-25-331, Revision 02, dated December 10, 2002.

Since this AD expands the applicability of AD 97-22-05, the FAA has considered a number of factors in determining whether to issue a new AD or to supersede the “old” AD. Although the four additional airplanes included in the applicability of this AD were inadvertently omitted from McDonnell Douglas DC-9 Service Bulletin 25-331, dated December 10, 1993, the other service bulletin referenced in AD 97-22-05 included those additional airplanes in the effectivity. The FAA also has considered the entire fleet size that would be affected by superseding AD 97-22-05 and the consequent workload associated with revising maintenance record entries. In light of this, the FAA has determined that a less burdensome approach is to issue a separate AD applicable only to these additional airplanes. This AD would not supersede AD 97-22-05; airplanes listed in the applicability of AD 97-22-05 are required to continue to comply with the requirements of that AD. This AD is a separate AD action, and is applicable only to Boeing Model DC-9-31 airplanes with manufacturer's fuselage numbers 1039 and 1046, and Model DC-9-32 airplanes with manufacturer's fuselage numbers 0268 and 0505; certificated in any category.

None of the airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would require approximately 10 work hours per airplane classified as Group 1, and 9 work hours per airplane classified as Group 2, to accomplish the modification of the accessory compartment. The average labor rate is $65 per work hour. Required parts would cost approximately $8,846 for each Group 1 airplane and $12,622 for each Group 2 airplane. Based on these figures, the cost impact of the modification of this AD on for this modification would be approximately $9,496 for Group 1 airplanes, and $13,207 per airplane classified as Group 2.

Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-08-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (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) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The FAA has received reports from the manufacturer of Boeing Model 747-400 series airplanes, indicating that there have been two cases of shafts in the rudder feel, centering, and trim mechanisms with either elongated holes or extra holes and drill starts. The shafts were found installed on airplanes in the factory. The cause of the discrepancies in the shafts is due to manufacturing and quality deficiencies at the supplier. This condition, if not corrected, could result in degradation/loss of rudder feel and centering, which could result in increased pilot workload and could lead to loss of control of the airplane.

The FAA has reviewed and approved Boeing Service Bulletin 747-27-2392, dated February 20, 2003, which describes procedures for replacing the rudder feel, centering, and trim mechanism with a new or serviceable rudder feel, centering, and trim mechanism. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design that may be registered in the United States at some time in the future, this AD is being issued to prevent degradation/loss of rudder feel and centering, which could result in increased pilot workload and could lead to loss of control of the airplane. This AD requires replacing the rudder feel, centering, and trim mechanism with a new or serviceable rudder feel, centering, and trim mechanism. The actions are required to be accomplished in accordance with the service bulletin described previously.

None of the Model 747-400 and -400F series airplanes affected by this action are on the U.S. Register. All airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would require approximately 12 work hours to accomplish the required actions, at an average labor rate of $65 per work hour. Required parts would cost $25,537. Based on these figures, the cost impact of this AD would be $26,317 per airplane.

The manufacturer may cover the cost of replacement parts associated with this AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with this AD. As a result, the costs attributable to the proposed AD may be less than stated above.

Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

Although this action is in the form of a final rule and was not preceded by notice and opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-140-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (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) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The Direction Generale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified the FAA that an unsafe condition may exist on all Dassault Model Mystere-Falcon 200 series airplanes. The DGAC advises that, during a maintenance visit, it was discovered that the fire extinguishing pipes for both engines did not have the holes necessary to disperse fire extinguishing agent. This condition, if not corrected, could result in inability to extinguish an engine fire, should one occur, and consequent loss of control of the airplane.

Dassault has issued Alert Service Bulletin F200-A120, Revision 1, dated November 13, 2003. That service bulletin describes procedures for a one-time general visual inspection of the fire extinguishing pipe for each engine to determine whether six holes for dispersal of fire-extinguishing agent are present between the rear coupling and the front attaching lug of the pipe, and corrective action if necessary. If the holes are not present, corrective action includes replacing the fire extinguishing pipe with a new pipe that has the necessary holes, or drilling the necessary holes in the existing pipe. Accomplishment of the action specified in the service bulletin is intended to adequately address the identified unsafe condition. The DGAC classified this service bulletin as mandatory and issued French emergency airworthiness directive F-2003-419(B), dated November 13, 2003, to ensure the continued airworthiness of these airplanes in France.

This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to ensure that the flightcrew is able to extinguish an engine fire, should one occur. Inability to extinguish an engine fire could result in loss of control of the airplane. This AD requires a one-time inspection of the fire extinguishing pipe for each engine to determine whether holes for dispersal of fire-extinguishing agent are present, and corrective action if necessary. The actions are required to be accomplished in accordance with the service bulletin described previously, except as discussed below.

Operators should note that, although the referenced service bulletin and French emergency airworthiness directive specify that the inspection of the fire extinguishing pipes must be accomplished before further flight, this AD requires that this inspection be accomplished within 10 days after the effective date of this AD. In developing an appropriate compliance time for this AD, we considered not only the manufacturer's and DGAC's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, and the time necessary to perform the inspection. In light of all of these factors, we find a compliance time of 10 days represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. This issue has been coordinated with the DGAC, and they have no objection.

Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for completing a card recording compliance with the service bulletin and submitting it to the manufacturer, this AD does not require those actions.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-247-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

On October 22, 2002, the FAA issued AD 2002-22-05, amendment 39-12929 (67 FR 66316, October 31, 2002), applicable to all Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, to require repetitive inspections to find cracks, fractures, or corrosion of each carriage spindle of the left and right outboard mid-flaps; and corrective action, if necessary. That AD also provides for an optional action of overhaul or replacement of the carriage spindles, which would extend the repetitive inspection interval. That action was prompted by reports indicating fractures of the carriage spindles of the outboard mid-flaps. The actions required by that AD are intended to prevent severe flap asymmetry due to fractures of the carriage spindles on an outboard mid-flap, which could result in reduced control or loss of controllability of the airplane.

Since the issuance of that AD, the FAA has received a report indicating that the inboard and outboard carriage spindles (number 7 and 8 carriage spindles) fractured on the right outboard flap on a Boeing Model 737-200 series airplane during approach to landing. The flight crew reported a loud bang approximately 500 feet above ground level (AGL) followed by the airplane rolling off hard to the right. Significant aileron and rudder inputs were required to maintain level flight. The fractures resulted from stress-corrosion cracking.

Investigation revealed that the fractured carriage spindles had been ultrasonically inspected per AD 2002-22-05 three weeks before the reported incident. Corrosion on the fractured face of the inboard carriage spindle indicated that it had failed on some flight previous to the failure of the outboard carriage spindle, which had almost no corrosion on the fractured surface. The outboard carriage spindle failed when the flaps were deployed to detent 40 and at an altitude of 500 feet AGL.

If both the inboard and outboard carriage spindles fracture in the critical section on an outboard flap when the mid-flaps are deployed beyond detent 15, it could result in loss of controllability of the airplane.

The carriage spindles on all Model 737-100, -200C, -300, -400, and -500 series airplanes are similar to those on the affected Model 737-200 series airplanes. Therefore, all of these models may be subject to the same unsafe condition.

The FAA has previously issued a supplemental notice of proposed rulemaking (NPRM) Docket 2002-NM-219-AD (68 FR 62409, November 4, 2003), applicable to all Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That action would supersede AD 2002-22-05 to require repetitive inspections to find cracks, fractures, or corrosion of each carriage spindle of the left and right outboard mid-flaps; and corrective action, if necessary. That action also would mandate the previously optional overhaul or replacement of the carriage spindles, which would end the repetitive inspections required by the existing AD. The comment period for that action closes on December 1, 2003.

This AD affects the proposed requirements of that supplemental NPRM. We plan to address any effects of this AD on those proposed requirements in future rulemaking.

The FAA has reviewed and approved Boeing Alert Service Bulletin 737-57A1277, Revision 1, dated November 25, 2003, which describes the following procedures:

• Performing repetitive nondestructive test (NDT) inspections and general visual inspections for each carriage spindle of the left and right outboard mid-flaps to detect cracks, corrosion, or severed carriage spindles; and applicable corrective actions, if necessary. The corrective actions include removing the carriage spindle and installing a new or serviceable carriage spindle.

• Performing repetitive gap checks of the inboard and outboard carriage of the left and right outboard mid-flaps to determine if there is a positive indication of a severed carriage spindle; and corrective actions, if necessary. The corrective actions include removing the carriage spindle and installing a new or serviceable carriage spindle.

The service bulletin also describes procedures for determining whether carriage spindles that are removed can be overhauled, and if so, references appropriate overhaul procedures.

This service bulletin recommends compliance times at the following approximate intervals, depending on the flight cycles or years in service of the carriage spindle:

1. For the gap check, ranging from daily to 15 days; and

2. For the NDT and general visual inspections, ranging from 6 days to 180 days.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of this same type design, this AD supersedes AD 2002-22-05 to continue to require repetitive inspections to find cracks, fractures, or corrosion of each carriage spindle of the left and right outboard mid-flaps; and corrective action, if necessary. This AD also requires accomplishment of the actions specified in the Boeing Alert Service Bulletin 737-57A1277 described previously, except as described below.

Operators should note that, for the optional overhaul procedures specified in the service bulletin, this AD imposes additional requirements to prevent improper nickel plating and hydrogen embrittlement. Boeing will add these procedures in the next revision of the overhaul manual.

Operators should also note that, although the Accomplishment Instructions of the Boeing Alert Service Bulletin 737-57A1277 describe procedures for reporting inspection findings to the manufacturer, this AD does not require that action. We do not need this information from operators.

We consider this AD interim action. We are currently considering requiring overhaul of the carriage spindles of the left and right outboard mid-flaps, which will allow for deferral of the repetitive inspections and gap checks required by this AD for some period of time. However, the planned compliance time for the overhaul would allow enough time to provide notice and opportunity for prior public comment on the merits of the overhaul.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-249-AD.” The postcard will be date stamped and returned to the commenter.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

This document corrects the errors contained in the final rule that was published by the Bureau of Industry and Security (BIS) on June 10, 2003 (68 FR 34526). The June 10, 2003, final rule amended the Export Administration Regulations (EAR) (15 CFR Parts 730-799) to implement the understandings reached at the June 2002 plenary meeting of the Australia Group (AG).

Specifically, this document corrects a minor typographical error contained in § 742.2(b)(1) of the EAR, which describes the licensing policies that apply to items identified on the AG lists. In the first sentence of § 742.2(b)(1), the phrase “use of chemical of biological weapons” is corrected to read “use of chemical or biological weapons.”

This document also corrects the errors contained in Export Control Classification Numbers (ECCNs) 2E001 and 2E002 on the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR). In the heading of ECCN 2E001, the first parenthetical phrase “(except 2A991, 2A993, or 2A994)” is corrected to read “(except 2A983, 2A991, or 2A994)” and the third parenthetical phrase “(except 2D991, 2D992, or 2D994)” is corrected to read “(except 2D983, 2D991, 2D992, or 2D994)”. In the heading of ECCN 2E002, the first parenthetical phrase “(except 2A991, 2A993, or 2A994)” is corrected to read “(except 2A983, 2A991, or 2A994)”. The corrections to the headings of ECCNs 2E001 and 2E002 are being made, because the June 10, 2003, final rule inadvertently referenced one ECCN ( i.e., ECCN 2A993) that had been removed from the CCL by a previous rule and did not reference two other ECCNs ( i.e., ECCNs 2A983 and 2D983) that were added to the CCL by that same rule. The rule that removed ECCN 2A993 and added new ECCNs 2A983 and 2D983 amended the EAR to expand controls on explosives detection equipment and related software and technology and was published by BIS on April 3, 2003 (68 FR 16208).

In addition, this document corrects errors made by the June 10, 2003, final rule in the missile technology (MT) controls paragraphs under the License Requirements sections of ECCNs 2E001 and 2E002. In the MT controls paragraph for ECCN 2E001, the phrase “2B117, 2D001 or 2D101 for MT reasons” is corrected to read “2B117, 2B119 to 2B122, 2D001, or 2D101 for MT reasons”. In the MT controls paragraph for ECCN 2E002, the phrase “2B116 or 2B117 for MT reasons” is corrected to read “2B116, 2B117, or 2B119 to 2B122 for MT reasons”. The corrections to these MT controls paragraphs are being made, because the June 10, 2003, final rule inadvertently omitted references to four new ECCNs ( i.e., ECCNs 2B119, 2B120, 2B121, and 2B122) that were added to the CCL by a previous rule. The rule that added these four new ECCNs to the CCL amended the EAR to conform the CCL with the reformatted Missile Technology Control Regime (MTCR) Annex of October 14, 1999, and was published by BIS on April 2, 2003 (68 FR 16144).

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number. This rule contains collections of information subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ). These collections have been approved by the Office of Management and Budget under Control Numbers 0694-0088 and 0694-0117.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Willard Fisher, Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 2705, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230.

The Department of State published a final rule (Public Notice 4538) in the Federal Register of November 21, 2003, amending § 126.1 of the International Traffic in Arms Regulations.

In rule FR Doc. 03-29158 published on November 21, 2003 (68 FR 65633), make the following corrections.

1. On page 65633, third column, DATES : November 21, 2003. Comments will be accepted at any time.” should read “ EFFECTIVE DATE : November 21, 2003.”

2. On page 65633, third column, “ ADDRESSES : Interested parties are invited to submit written comments to the Department of State, Directorate of Defense Trade Controls, Office of Defense Trade Controls Management, ATTN: Regulatory Change, Angola and Iraq, 12th Floor, SA-1, Washington, DC 20522-0112.” should read ADDRESSES: Interested parties are invited to submit written comments to the Department of State, Directorate of Defense Trade Controls, Office of Defense Trade Controls Management, ATTN: Regulatory Change, Angola and Iraq, 12th Floor, SA-1, Washington, DC 20522-0112. Comments will be accepted at any time.”

Section 4022(b) of the Employee Retirement Income Security Act of 1974 provides for certain limitations on benefits guaranteed by the PBGC in terminating single-employer pension plans covered under Title IV of ERISA. One of the limitations, set forth in section 4022(b)(3)(B), is a dollar ceiling on the amount of the monthly benefit that may be paid to a plan participant (in the form of a life annuity beginning at age 65) by the PBGC. The ceiling is equal to “$750 multiplied by a fraction, the numerator of which is the contribution and benefit base (determined under section 230 of the Social Security Act) in effect at the time the plan terminates and the denominator of which is such contribution and benefit base in effect in calendar year 1974 [$13,200].” This formula is also set forth in § 4022.22(b) of the PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022). Appendix D to part 4022 lists, for each year beginning with 1974, the maximum guaranteeable benefit payable by the PBGC to participants in single-employer plans that have terminated in that year.

Section 230(d) of the Social Security Act (42 U.S.C. 430(d)) provides special rules for determining the contribution and benefit base for purposes of ERISA section 4022(b)(3)(B). Each year the Social Security Administration determines, and notifies the PBGC of, the contribution and benefit base to be used by the PBGC under these provisions, and the PBGC publishes an amendment to appendix D to part 4022 to add the guarantee limit for the coming year.

The PBGC has been notified by the Social Security Administration that, under section 230 of the Social Security Act, $65,100 is the contribution and benefit base that is to be used to calculate the PBGC maximum guaranteeable benefit for 2004. Accordingly, the formula under section 4022(b)(3)(B) of ERISA and 29 CFR 4022.22(b) is: $750 multiplied by $65,100/$13,200. Thus, the maximum monthly benefit guaranteeable by the PBGC in 2004 is $3,698.86 per month in the form of a life annuity beginning at age 65. This amendment updates Appendix D to Part 4022 to add this maximum guaranteeable amount for plans that terminate in 2004. (If a benefit is payable in a different form or begins at a different age, the maximum guaranteeable amount is the actuarial equivalent of $3,698.86 per month.)

Section 4011 of ERISA requires plan administrators of certain underfunded plans to provide notice to plan participants and beneficiaries of the plan's funding status and the limits of the PBGC's guarantee. The PBGC's regulation on Disclosure to Participants (29 CFR part 4011) implements the statutory notice requirement. This rule amends Appendix B to the regulation on Disclosure to Participants by adding information on 2004 maximum guaranteed benefit amounts. Plan administrators may, subject to the requirements of that regulation, include this information in participant notices.

General notice of proposed rulemaking is unnecessary. The maximum guaranteeable benefit is determined according to the formula in section 4022(b)(3)(B) of ERISA, and these amendments make no change in its method of calculation but simply list 2004 maximum guaranteeable benefit amounts for the information of the public.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this regulation, the Regulatory Flexibility Act of 1980 does not apply (5 U.S.C. 601(2)).

The PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) sets forth (in subpart B) the methods for valuing plan benefits of terminating single-employer plans covered under Title IV of the Employee Retirement Income Security Act of 1974. Under ERISA section 4041(c), guaranteed benefits and benefit liabilities under a plan that is undergoing a distress termination must be valued in accordance with part 4044, subpart B. In addition, when the PBGC terminates an underfunded plan involuntarily pursuant to ERISA Section 4042(a), it uses the subpart B valuation rules to determine the amount of the plan's underfunding.

Under § 4044.51(b), early retirement benefits are valued based on the annuity starting date, if a retirement date has been selected, or the expected retirement age, if the annuity starting date is not known on the valuation date. Sections 4044.55 through 4044.57 set forth rules for determining the expected retirement ages for plan participants entitled to early retirement benefits. Appendix D of part 4044 contains tables to be used in determining the expected early retirement ages.

Table I in appendix D (Selection of Retirement Rate Category) is used to determine whether a participant has a low, medium, or high probability of retiring early. The determination is based on the year a participant would reach “unreduced retirement age” ( i.e. , the earlier of the normal retirement age or the age at which an unreduced benefit is first payable) and the participant's monthly benefit at unreduced retirement age. The table applies only to plans with valuation dates in the current year and is updated annually by the PBGC to reflect changes in the cost of living, etc.

Tables II-A, II-B, and II-C (Expected Retirement Ages for Individuals in the Low, Medium, and High Categories respectively) are used to determine the expected retirement age after the probability of early retirement has been determined using Table I. These tables establish, by probability category, the expected retirement age based on both the earliest age a participant could retire under the plan and the unreduced retirement age. This expected retirement age is used to compute the value of the early retirement benefit and, thus, the total value of benefits under the plan.

This document amends appendix D to replace Table I-03 with Table I-04 in order to provide an updated correlation, appropriate for calendar year 2004, between the amount of a participant's benefit and the probability that the participant will elect early retirement. Table I-04 will be used to value benefits in plans with valuation dates during calendar year 2004.

The PBGC has determined that notice of and public comment on this rule are impracticable and contrary to the public interest. Plan administrators need to be able to estimate accurately the value of plan benefits as early as possible before initiating the termination process. For that purpose, if a plan has a valuation date in 2004, the plan administrator needs the updated table being promulgated in this rule. Accordingly, the public interest is best served by issuing this table expeditiously, without an opportunity for notice and comment, to allow as much time as possible to estimate the value of plan benefits with the proper table for plans with valuation dates in early 2004.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this regulation, the Regulatory Flexibility Act of 1980 does not apply (5 U.S.C. 601(2)).

Section 503(a) of SMCRA permits a State to assume primacy for the regulation of surface mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S. C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated May 2, 2001 (Administrative Record Number WV-1209), the West Virginia Department of Environmental Protection (WVDEP) submitted a proposed amendment to the West Virginia program. The program amendment consists of changes to the West Virginia Surface Mining Reclamation Rules at Code of State Regulations (CSR) 38-2, as amended by House Bill 2663.

We announced receipt of the proposed amendment in the May 24, 2001, Federal Register (66 FR 28682). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the proposed amendment (Administrative Record Number WV-1213). The public comment period closed on June 25, 2001. At the request of two commenters, we extended the comment period through July 13, 2003 (Administrative Record Numbers WV-1222 and WV-1223). We received comments from four environmental organizations and two Federal agencies.

We did not request comments on the proposed changes to CSR 38-2-3.14.b.12, concerning the partial removal of coal processing refuse piles, because that activity pertains to the removal of coal refuse that does not meet the definition of coal. In 1990, we stated that “the removal, transport and use (without onsite reprocessing) of coal mine refuse which does not meet the definition of “coal” set forth in 30 CFR 700.5; i.e. , ASTM Standard D 388-77, is not subject to regulation [under SMCRA].” 55 FR 21314; May 23, 1990. Therefore, it is not subject to regulation under SMCRA, and will not be considered here. We note that the removal of abandoned coal refuse piles was the subject of a later amendment that was addressed in a final rule notice published in the May 1, 2002, Federal Register (67 FR 21920) (Administrative Record Number WV-1300).

In the proposed rule notice published on May 24, 2001, we incorrectly stated that the definition of “cumulative impact area” at CSR 38-2-2.39 is new and subject to public comment. The definition of “cumulative impact area” is not new, and is already part of the approved West Virginia program.

On July 1, 2003, WVDEP sent us a letter containing clarification concerning the proposed deletion of the definition of “cumulative impact,” the addition of a definition of “material damage to the hydrologic balance outside the permit areas,” and the addition of a provision qualifying certain coal removal during reclamation as government-financed construction that is exempt from a permit (Administrative Record Number WV-1365). The State's July 1, 2003, letter was in response to questions that we posed in a list dated February 26, 2003 (Administrative Record Number WV-1365). We announced receipt of the State's clarification letter in the Federal Register on July 31, 2003 (68 FR 44910). In the same document, we reopened the comment period to provide the public an opportunity to review and comment on the State's letter and whether the amendment, as further clarified in the State's letter dated July 1, 2003, satisfies the applicable program approval criteria of 30 CFR 732.15 (Administrative Record Number WV-1369). The public comment period closed on August 15, 2003. At the request of a Federal agency, we extended the public comment period through August 29, 2003 (Administrative Record Number WV-1371). We received comments from three environmental organizations and two Federal agencies.

Several of the proposed changes to the West Virginia regulations that were submitted as part of this amendment were intended to address required program amendments codified in the Federal regulations at 30 CFR 948.16(xx), (qqq), (zzz), (ffff), (gggg), (hhhh), (jjjj), (nnnn) and (pppp). We expedited our review of the specific amendments relating to those required amendments and published our decisions on them in the Federal Register on May 1, 2002 (67 FR 21904). Specifically, our findings on the following provisions that were submitted with this amendment and were addressed in our May 1, 2002, decision include: CSR 38-2-14.8.a.6 (948.16(xx)); CSR 38-2-12.2.e (948.16(qqq)); CSR 38-2-3.12.a.1 (948.16(zzz)); CSR 38-2-16.2.c.4 (948.16(ffff)); CSR 38-2-16.2.c.4 (948.16(gggg)); CSR 38-2-16.2.c.4 (948.16(hhhh)); CSR 38-2-12.4.e (948.16(jjjj)); CSR 38-2-3.14.a (948.16(nnnn)); and CSR 38-2-24.4 (948.16(pppp)). Our findings on the remaining amendments submitted to us on May 2, 2001, are presented below.

Following are the findings we made pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17 concerning the proposed amendments to the West Virginia program. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes and are approved here without discussion.

The definition of “cumulative impact” at CSR 38-2-2.39 is being deleted. The deleted definition provided as follows:

There is no Federal counterpart to the definition of “cumulative impact” at CSR 38-2-2.39 that the State proposes to delete. Under SMCRA at section 505, the States have the discretion to add laws or regulations to their programs as long as those laws or regulations are not inconsistent with SMCRA. Conversely, the States also have the discretion to remove laws or regulations from their approved programs so long as the removal does not render the program inconsistent with SMCRA. Therefore, the criterion we must apply in deciding whether to approve the proposed deletion is whether or not the deletion would render the West Virginia program less stringent than SMCRA or less effective than the Federal regulations. That criterion is different than the question of whether the deletion of the definition of “cumulative impact” may alter the existing CHIA process in West Virginia in a way that is adverse to some commenters' interests as they have asserted (see Section IV, Summary and Disposition of Comments). Rather, we are rendering a decision only on the question of whether the deletion of the definition of “cumulative impact” renders the West Virginia program less stringent than SMCRA or less effective than the Federal regulations.

As the WVDEP noted in its July 1, 2003, letter to OSM, the West Virginia program contains a counterpart to the Federal definition of “cumulative impact area.” That definition was determined earlier to be consistent with the counterpart Federal definition of the term “cumulative impact area” at 30 CFR 701.5. The West Virginia program also has approved counterparts to all of the Federal CHIA-related requirements, and those provisions are not at issue here. However, there is no Federal requirement that State programs contain a definition of “cumulative impact.” For these reasons, we find that the deletion of the definition of “cumulative impact” does not render the West Virginia program less stringent than SMCRA nor less effective than the Federal regulations and can be approved. We express no further opinion on whether or how the deletion of this definition may alter the current CHIA process in West Virginia, because such procedural changes are within the State's discretion under the existing Federal regulations.

The CHIA provision at CSR 38-2-3.22.e is being amended by adding the following definition of material damage:

There is no Federal counterpart to the proposed State definition of “material damage to the hydrologic balance outside the permit areas.” Nor is there a Federal requirement that States develop a definition of material damage. In addition, SMCRA at section 505(b) provides that any State statutory or regulatory provision which is in effect or may become effective after the enactment of SMCRA and that provides for the control and regulation of surface mining and reclamation operations for which no provision is contained in SMCRA shall not be construed to be inconsistent with SMCRA. In a Federal Register notice dated September 26, 1983, OSM addressed comments on the Federal CHIA regulations at 30 CFR 780.21(g) and 784.14(f) (48 FR 43956). OSM concluded that, because the gauges for measuring material damage may vary from area to area, and even from operation to operation, the criteria for determining material damage should be left to the States (48 FR 43956, 43972-43973).

It is expected that State and Federal regulatory authorities will develop criteria to measure material damage for the purposes of the CHIAs. Currently, all 24 State coal regulatory programs and the Federal regulatory programs in Tennessee, Washington, and the Federal Indian lands program have implemented a CHIA process. All of these programs include making decisions on whether or not material damage outside the permit area would occur. As such, each has established some basis or criteria for making those decisions. Seeking Federal approval of such criteria is discretionary, and many States have developed and applied such criteria without OSM approval. Only one State (Wyoming), has previously codified a definition of material damage and has had that definition approved by OSM. We approved Wyoming's definition of material damage in the original program approval on November 26, 1980, as follows: “material damage to the hydrologic balance is a significant long-term or permanent adverse change to the hydrologic regime.” We note that Wyoming's approved definition includes a long-term aspect as does the proposed West Virginia definition of material damage to the hydrologic balance outside the permit areas.

While West Virginia has submitted its definition of material damage for approval, that action does not alter the fact that it, like any other State, has the discretion to develop and implement material damage criteria without seeking or awaiting OSM approval of that criteria. The WVDEP's July 1, 2003, letter acknowledges that the State intends to use a narrative-based use standard in making its CHIAs and is asking for OSM to formally sanction that narrative-based standard. Furthermore, the WVDEP also stated in its July 1, 2003, letter, that the State approach will consider both water quality numerical limits and water resources uses designated by the water quality programs in making the CHIAs required by the mining program. In essence, the State proposes to adopt both a use-based narrative standard and a numeric standard for evaluating material damage to the hydrologic balance under its CHIA process.

As mentioned above in Finding 1, the West Virginia program has approved counterparts to all the Federal CHIA-related requirements. However, there is no Federal requirement that States must develop a specific definition of material damage. The proposed definition does not on its face negate, supersede, alter, or conflict with any of the approved State rules related to the CHIA process or their Federal counterparts. For these reasons, we find that the proposed State definition of material damage does not render the West Virginia program less stringent than SMCRA nor less effective than the Federal regulations and can be approved.

By submitting the following changes on May 1, 2002, and March 18, 2003, the State proposes to amend CSR 38-2-3.31 (Administrative Record Numbers WV-1209 and WV-1352).

In its March 18, 2003, amendment submittal, subsection 3.31.a is amended to provide that, “Funding at less than fifty percent (50%) may qualify if the construction is undertaken as an approved government reclamation contract.” We announced receipt of the proposed amendment to subsection 3.31.a in a proposed rule that was published in the Federal Register on April 14, 2003, (68 FR 17898). Although the rest of the submittal has been acted upon, we have not rendered a decision on the proposed amendment to subsection 3.31.a.

Subsection 3.31.c is new, and provides the following: “Funding less than fifty percent (50%) may qualify if the construction is undertaken as part of an approved reclamation project in accordance with WV Code § 22-3-28.” This amendment was submitted on May 1, 2002, and is intended to revise the West Virginia program to add the additional flexibility afforded by the revised Federal definition of the term “government-financed construction” at 30 CFR 707.5. For more information concerning the revised Federal definition and the Federal Abandoned Mine Land (AML) Enhancement Rule, see the February 12, 1999, Federal Register (64 FR 7469).

In its July 1, 2003, clarification letter to OSM, WVDEP stated that the “change to allow coal removal in conjunction with a reclamation project is designed to encourage/result in low cost or no-cost reclamation as provided for in the Federal program (see 30 CFR 707.5).” The WVDEP asserted that the State rule contains the same language as the Federal regulations, except that the State refers to the W. Va. Code and the Federal counterpart refers to title IV. Indeed, the Federal definition of “Government-financed construction” at 30 CFR 707.5 provides, in part, that funding at less than 50 percent may qualify if the construction is undertaken as an approved reclamation project under title IV of the Act. That is, the Federal definition of “government-financed construction” limits government funding at less than 50 percent to only those construction projects that are undertaken as approved abandoned mine land reclamation projects under title IV of SMCRA.

The WVDEP also stated that the W. Va. Code 22-3-28(e) is a subsection of W. Va. Code 22-3-28. Subsection (e), the WVDEP stated, is the only subsection of W. Va. Code 22-3-28 that mentions government-financed reclamation. Therefore, the WVDEP asserts, it is obvious that subsection (e) is the only applicable subsection to which the proposed CSR 38-2-3.31(c) could apply.

The WVDEP is currently in the process of revising the State AML Reclamation Plan to add counterparts to the Federal requirements at 30 CFR 874.17 which require specific consultations and concurrences with the Title V regulatory authority for AML construction projects receiving less than 50 percent government financing. In addition, the WVDEP intends to submit a revision to the State's AML rules during the 2004 regular legislative session that will add a counterpart to the Federal definition of “government-financed construction” at 30 CFR 707.5.

As discussed in the February 9, 1999, May 5, 2000, and May 1, 2002, Federal Register notices, we deferred taking similar action on proposed revisions to the State's statutory and regulatory provisions regarding government-financed construction (64 FR 6201, 64 FR 6204, 65 FR 26130 and 67 FR 21920). We took this action because the Federal AML Enhancement Rule had not been finalized and the State had not amended its rules. Even with the proposed changes mentioned above, the State has not completely revised its rules to include all of the AML Enhancement requirements at 30 CFR 707.5 and 874.17. In addition, in a recent ruling, the U.S. Court of Appeals concluded that the Federal AML Enhancement Rule is a reasonable interpretation of SMCRA. However, the Court found that, in promulgating the rule, OSM issued an interpretation that does not appear reasonable and remanded the case for further explanation. See Kentucky Resources Council, Inc. v. Gale A. Norton, Secretary of the Interior, U.S. District Court of Appeals for the District of Columbia Circuit, Civil Action No. 01-5263, June 12, 2003. Therefore, we are deferring our decision on the amendments at CSR 38-2-3.31.a and c until the State adds counterparts to the Federal regulations at 30 CFR 707.5 and 874.17 as discussed above.

This provision is amended by adding new language at the end of the existing one-sentence paragraph, and by adding three new subdivisions. As amended, the provision is as follows:

We find that as amended, CSR 38-2-3.32.g is substantively identical to and no less effective than the Federal requirements at 30 CFR 773.13 and can be approved. We note that the proposed language contains a citation error, in that “30 CFR 773.15(4)(i)” should be “30 CFR 785.25.” It is our understanding that the citation error will be corrected at a future date. Our finding that this provision is no less effective than the Federal regulations is based upon that understanding.

This provision is amended by deleting the words, “normal flow or gradient of the stream, adversely affect fish migration or related environmental values, materially damage the.” In addition the words “and” and “or other environmental resources” are added. As amended, the provision is as follows:

We find that as amended, section CSR 38-2-5.2.a. is substantively identical to and no less effective than the counterpart Federal regulations at 30 CFR 816.57(a)(1) and (b) and can be approved. We note that the State counterpart to the Federal regulations at 30 CFR 816.57(a)(2) concerning stream channel diversions was previously approved and is located at CSR 38-2-5.3.

This provision is new, and provides as follows:

There is no counterpart to this new State provision in the Federal surface mining regulations. However, before a surety company can issue a bond for a Federal project, it must be certified by the U.S. Department of the Treasury. For further information, see Department of the Treasury's Listing of Approved Sureties, Department Circular 570. Therefore, we find that the new provision does not render the West Virginia program inconsistent with the Federal bonding and insurance regulations at 30 CFR part 800 and can be approved.

We asked for public comments on the State's amendment in the Federal Register on May 24, 2001 (66 FR 28682) (Administrative Record Number WV-1213). We received comments from the West Virginia Rivers Coalition (Administrative Record Number WV-1228), and combined comments from Hominy Creek Preservation Association, Inc., Ohio River Valley Environmental Coalition, Inc., and Citizen Coal Council (Administrative Record Number WV-1227). We also asked for comments on the State's clarification letter in the Federal Register on July 31, 2003 (Administrative Record Number WV-1368). By letter dated August 15, 2003, the Hominy Creek Preservation Association, Inc., Ohio River Valley Environmental Coalition, Inc., and Citizen Coal Council submitted combined comments in response to the WVDEP's July 1, 2003, letter of explanation concerning the CHIA amendments (Administrative Record Number WV-1370).

1. A commenter stated that, despite the State's assertion that the amendments become effective on August 1, 2001, the Federal regulations provide that no amendments may take effect until OSM approves the change as a program amendment. We concur with this comment. According to the Federal regulations at 30 CFR 732.17(g) concerning State program amendments, no changes to laws or regulations that make up the approved State program shall take effect for purposes of a State program until approved as an amendment. However, as noted above in Finding 2, because the Federal rules do not define material damage, a State has discretion to develop and implement material damage criteria without seeking or awaiting OSM approval of that criteria.

2. A commenter asserted that the State did not include a “reasoned analysis” as to why it was making the changes to delete the definition of “cumulative impact” at CSR 38-2-2.39 and to add the definition of “material damage to the hydrologic balance outside the permit area” at CSR 38-2-3.22.e. Despite its July 1, 2003, clarification letter, the commenter asserted, the State has still not offered a rational explanation for the proposed amendment. This comment is beyond the scope of our criteria in approving proposed State program amendments. Whether or not the State has provided a “reasoned analysis” of proposed changes is an issue for the State rulemaking process. Our criterion is only to the issue of whether or not the proposed changes are consistent with the Federal requirements.

3. A commenter stated that the definition of “cumulative impact” at CSR 38-2-2.39 is needed because the term “cumulative impact” is used at CSR 38-2-3.32.d.5. Subsection 3.32.d.5 provides that no permit application or significant revision may be approved until, among other things, the WVDEP has made an assessment of the probable “cumulative impacts” of all anticipated coal mining on the hydrologic balance in the cumulative impact area, and has determined that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. The commenter stated that for CSR 38-2-3.32.d.5 to retain meaning, the term “cumulative impact” must continue to be defined. We disagree with this comment, because the State retains the definition of “cumulative impact area” at CSR 38-2-2.39, which explains the concept of cumulative impact to mean the area, including the permit area, within which impacts resulting from the proposed operation may interact with the impacts of all anticipated mining on surface and groundwater systems. As addressed in a prior approval, the State's definition of cumulative impact area is substantively identical to the Federal definition of cumulative impact area at 30 CFR 701.5.

The commenter stated that the definition of “cumulative impact” is also important because it clarifies that “individual mines within a given cumulative impact area may be in full compliance with effluent standards and all other regulatory requirements, but as a result of the co-mingling of their off-site flows, there is cumulative impact.” By deleting the definition, the commenter asserted, this clarification is omitted from the rules, making it more difficult in the future to hold individual mines accountable if they impact nearby water resources. In response, despite the deletion of the definition of “cumulative impact,” the WVDEP continues to require, at CSR 38-2-14.5, that all surface mining and reclamation activities shall be conducted to prevent material damage to the hydrologic balance outside the permit area. In its July 1, 2003, letter, the WVDEP stated that it will consider the numerical limits and water resource use designated by the water quality programs to make its CHIAs. As discussed above in Finding 1, the deletion of the definition of “cumulative impact” does not render the West Virginia program less effective than the Federal regulations which do not contain a definition of “cumulative impact.”

In addition, the commenter stated, the original definition of “cumulative impact” requires that cumulative impacts be minimized. The proposed deletion, the commenter stated, does away with this goal, further weakening the proposed new regulations. We disagree. The State performance standards at CSR 38-2-14.5 concerning hydrologic balance provide that all surface mining and reclamation activities shall be conducted to minimize the disturbance of the hydrologic balance within the permit and adjacent area, and to prevent material damage to the hydrologic balance outside the permit area.

The commenter also stated that the deletion of the definition of “cumulative impact” at CSR 38-2-2.39 and the addition of the definition of “material damage to the hydrologic balance” at CSR 38-2-3.22.e. combine to redefine “material damage.” The commenter stated that the proposed definition of “material damage to the hydrologic balance” refers to “existing conditions and uses” without stating whether this phrase refers to “existing uses” as defined in the Clean Water Act (CWA) or a plain English definition such as “those conditions currently found.” If a new definition of “material damage” is to be adopted, it should be clearly tied to “existing uses” and “designated uses” as defined in the CWA, the commenter stated. In response, the State's July 1, 2003, letter clearly links “existing uses” to the State's legislative rule at CSR 46-1 concerning requirements governing stream uses and numerical water quality standards that apply to those streams. While the proposed definition of material damage only mentions existing uses, the State's water quality standards at CSR 46-1 take into consideration both existing and designated uses of streams. Therefore, as required by CSR 46-1, both existing and designated uses will be considered when determining what constitutes material damage to the hydrologic balance. In any case, such changes are within the discretion of the State under the Federal regulations.

The commenter stated that if OSM approves a new definition of “material damage,” it should be modified as follows: “Material damage to the hydrologic balance outside the permit areas means any long term or permanent change in the hydrologic balance caused by surface mining operation(s) which has a significant adverse impact on the capability of the affected water resource(s) to support existing uses and designated uses as defined by the Clean Water Act and as implemented by the state's water quality standards.” Otherwise, the commenter stated, the definition as currently written would have as a goal the maintenance of existing conditions—even if impacted water bodies are already impaired—rather than the goal of protecting existing and designated uses as required by the Clean Water Act. The proposed changes would facilitate the further degradation of polluted streams, the commenter asserted. In response, we believe that the State has, as explained in its July 1, 2003, letter, linked its CHIA requirements to the States identified uses of West Virginia streams and the numerical water quality standards that apply to those streams. Therefore, the State will consider both existing and designated uses when making its determination of material damage.

4. A commenter stated that the deletion of the definition of “cumulative impact” would authorize WVDEP to perform CHIAs that do not predetermine threshold limits or ranges in defining material damage and that do not include each applicable numeric water quality standard and effluent limitation among those limits and ranges. These amendments, the commenter stated, are not in accordance with the provisions of SMCRA, nor are they consistent with the Federal regulations governing hydrologic protection. The changes thus fail to meet the criteria for approval set forth at 30 CFR 732.15(a) and 732.17(h)(10), the commenter stated. The commenter also stated, in response to the WVDEP's July 1, 2003, letter, that it is essential that WVDEP set forth some objective criteria to use in performing CHIA's. Unless WVDEP sets specific limits or ranges of cumulative impact (whether based on biological, chemical, or other parameters), there can be no “objective criteria” to determine whether a surface coal mining operation has or has not materially damaged the “use” of a water body. Indeed, the commenter stated, to implement effectively the “use”-based material damage standard that WVDEP proposes, the agency will necessarily have to establish threshold limits or ranges of parameters that measure actual stream “use” in order to determine objectively whether the hydrologic effect of a particular operation meets or violates any narrative “use” standard in 46 CSR 1. At a minimum, the commenter stated, monitoring plans for permits approved on the basis of a biologically-based “use” standard would necessarily have to establish specific thresholds and ranges of biological activity in making such determinations. Thus, repeal of the current requirement to predetermine “threshold limits or ranges” of cumulative impact that constitute material damage to the hydrologic balance cannot be justified by either the goal of establishing “objective criteria” or the goal of shifting to use-based standard for material damage.

We disagree with the assertion that the proposed changes are not consistent with SMCRA or the Federal regulations. It is our understanding that under the proposed amendments, the WVDEP will conduct CHIAs by considering the West Virginia legislative rules at CSR 46-1 to identify both the existing and designated uses and the established numerical water quality standards for the streams and stream segments in the cumulative impact area. The numerical water quality standards identified in CSR 46-1 are, as WVDEP stated in its July 1, 2003, letter, intended to protect the respective stream uses that are identified in CSR 46-1. Therefore, it is the numerical water quality standards that are the objective criteria that the WVDEP will use in its assessment of whether the proposed mining operation is designed to prevent material damage outside the permit area in accordance with CSR 38-2-3.22.e. As noted in its July 1, 2003, letter, the State also plans to adopt a use-based narrative standard to assess material damage to the hydrologic balance. The WVDEP stated that this approach considers the numerical limits and water resource use designated by the water programs when making CHIAs. In any case, West Virginia has the discretion under the Federal regulations to establish or modify its CHIA process, without seeking OSM's approval, so long as it remains consistent with Federal regulations. Therefore, to the extent that these changes may broaden the State's discretion in its CHIA process, it is still consistent with Federal regulations.

The commenter also stated that, at a minimum, OSM must require WVDEP to explain how the WVDEP will require permittees to monitor affected water bodies in a manner that produces data that can be “used to determine the impact of the operation on the hydrologic balance” as CSR 38-2-3.22.g and 38-2-3.22.h require. The proposed shift to a “use”-based definition of material damage appears to make irrelevant any measurement of the chemical or physical parameters mentioned in the hydrologic monitoring provisions of the approved program, because those parameters do not (at least directly) measure changes in the capability of a water body to support a specific “use.” Since WVDEP does not propose a change in the specifically required monitoring parameters, the commenter stated, how will the WVDEP ensure that permittees develop meaningful data for determining whether material damage has occurred? In response, the State's shift to a “use”-based definition of material damage does not mean that the State has abandoned the use of numerical water quality standards. Rather, the WVDEP has indicated that the State is using the “use” designations of West Virginia streams as identified in CSR 46-1 to identify the designated use of a stream or stream segment, and to determine the numerical water quality standards for those streams and stream segments. The use of CSR 46-1 allows the WVDEP CHIA reviewers to clearly identify the numerical water quality standards for West Virginia streams. The WVDEP stated in its July 1, 2003, letter that the State rules provide a narrative standard, based upon use, for the reviewers to apply when making CHIA findings.

The commenter stated that, as noted in detail in their initial comments on the proposed amendments (see Administrative Record Number WV-1227), the proposed deletion of the “cumulative impact” definition appears aimed at eliminating rather than establishing “objective criteria” for determining whether a mining operation causes material damage to the hydrologic balance. The commenter also stated that without the existing requirement to predetermine threshold limits or ranges, WVDEP's proposed definition of “material damage” establishes decidedly subjective criteria that will unquestionably prove unenforceable. We disagree with this comment, because the State regulations at CSR 46-1 clearly identify the specific numerical water quality standards that apply to West Virginia's streams and stream segments.

The commenter also stated that none of the terms used in the definition of “material damage” (such as “long term,” “permanent,” and “capability”) is an objective criterion. Even if WVDEP had defined these terms, the commenter stated, the WVDEP's definitions of the terms would not have necessarily precluded the West Virginia Surface Mine Board or the West Virginia courts from settling on different definitions. The vague nature of the terms in the proposed “material damage” definition requires OSM to conclude that approval of the proposed program amendments would render the West Virginia program less effective than its Federal counterpart. First, there is no Federal counterpart to the proposed definition, nor is there a Federal requirement that the State establish objective criteria, or submit them to OSM for approval. We agree with the comment that some of the words in the definition of “material damage to the hydrologic balance outside the permit areas” may appear to be vague and subject to interpretation. However, the numerical water quality standards presented in the regulations at CSR 46-1, which take into consideration stream uses, are clear. Therefore, despite the vagueness of some words in the definition, the State has clear numeric and use based standards that the WVDEP has stated it will consider when performing a CHIA determination.

In referring to the statements in the WVDEP's July 1, 2003, letter, the commenter stated that nothing in the rulemaking record supports the WVDEP's suggestion that the existing “cumulative impact” definition leaves “the threshold(s) to be assigned to the unguided discretion of an individual reviewer.” In actual practice, when WVDEP reviewers have assigned “threshold limits or ranges” under the existing regulation, they have drawn them from the established numeric West Virginia water quality standards in Appendix E to CSR 46-1. WVDEP cites not even one instance, the commenter stated, in which an “individual reviewer” has assigned any “threshold” that does not appear in Appendix E. Even if there have been such instances, the rational remedy would be to confine the assignable threshold limits or ranges to those set forth in Appendix E, rather than doing away with limits or ranges altogether. An unrealized potential for abuse does not constitute a rational justification for repealing West Virginia's “cumulative impact” definition, particularly in view of the State's ability to prevent abuse without doing away with “threshold limits or ranges” entirely, the commenter stated. The commenter is seeking OSM intervention into the innerworkings of the State's CHIA process that Federal regulations have left to the discretion of the States. In response, this comment acknowledges WVDEP's current reliance on the water quality standards in Appendix E of CSR 46-1. We believe that this is what the WVDEP stated that it will do as part of its CHIA process in its July 1, 2003, letter. That is, it stated that “[t]he WVDEP approach considers the numerical limits and water resource use designated by the water quality programs to make the assessment required by the mining program.” Requiring all CHIA reviewers to use the specific standards at CSR 46-1 should also eliminate WVDEP's concern that such standards would be developed individually by the unguided discretion of individual reviewers.

The commenter stated that WVDEP's claim that the proposed program amendments will prevent development or utilization of thresholds or parameters for effluent discharges other than those established by the CWA program is a complete non sequitur. The threshold limits or ranges required by the current definition of “cumulative impact” concern determinations of “material damage to the hydrologic balance.” When predetermined, such threshold limits or ranges apply to the water quality of water bodies that receive effluent discharges from surface coal mining and reclamation operations, not to effluent discharges themselves. Thus, it is irrational to suggest that abandonment of the requirement to predetermine threshold limits and ranges preclude development or utilization of thresholds or parameters for effluent discharges that might prove inconsistent with the CWA. Moreover, the commenter stated, even if predetermination of “threshold limits or ranges” might conceivably dictate effluent limitations that conflict with West Virginia's program under the CWA, the only rational solution to that problem would be to confine the selection of limits or ranges to those that are consistent with proper implementation of the CWA, not to abandon threshold limits or ranges altogether. In response, we believe that by considering the numerical water quality standards in CSR 46-1, as the WVDEP so indicated in its July 1, 2003, letter, the WVDEP is in effect confining its consideration to those water quality standards that are consistent with proper implementation of the CWA. Furthermore, the State's water quality standards protect both aquatic life and human health by designating uses and establishing specific parameters and limits or ranges to protect such uses during mining.

The commenter stated that, absent a showing that the State's enforcement of SMCRA's hydrologic protection requirements has suffered from the absence of a “use”-based material damage definition (rather than non-enforcement of the existing “cumulative impact” definition), the WVDEP's desire to shift to the sort of definition it previously rejected (and which OSM has found inappropriate for inclusion in its national regulations, the commenter stated) is arbitrary and capricious, the commenter stated. We disagree with this comment. As we stated above in Finding 2, OSM concluded that, because the gauges for measuring material damage may vary from area to area, and from operation to operation, the criteria for determining material damage should be left to the States (48 FR 43956, 43972-43973; September 26, 1983). It is not inappropriate for the State to amend its procedures or criteria for performing CHIAs and to amend those procedures as it deems necessary. Seeking Federal approval of CHIA criteria is discretionary.

5. A commenter stated that WVDEP's perceived need to establish a definition of “material damage” that is consistent with the administration and implementation of West Virginia's counterpart to the Clean Water Act, while rational in and of itself, does not provide a rational justification for repealing the definition of “cumulative impact” or shifting to an exclusively “use”-based definition of material damage. The commenter stated that West Virginia has adopted numeric water quality standards that function hand-in-glove with the State's narrative, “use”-based water quality criteria. The only rational method of ensuring that the CHIA process and enforcement of SMCRA's hydrologic protection requirements are consistent with the administration and implementation of West Virginia's counterpart to the Clean Water Act, the commenter stated, would be to confine the “threshold limits or ranges” that WVDEP may predetermine under the “cumulative impact” definition to (1) The numeric water quality standards applicable to each affected water body and (2) such additional limits or ranges as WVDEP may determine necessary to enforce applicable narrative water quality criteria. Here again, the commenter stated, the perceived need to ensure compatibility with the Clean Water Act simply does not justify doing away with “threshold limits or ranges” that are an integral part of the State's program under the Clean Water Act. In response, as we stated above in Finding 2, the WVDEP's July 1, 2003, letter acknowledges that the State intends to use a narrative-based use standard in making its CHIAs. The WVDEP also stated in its July 1, 2003, letter, that the State approach will consider both water quality numerical limits and water resources uses designated by the water quality programs in making the CHIA required by the mining program.

6. A commenter stated that Congress imposed the CHIA requirement to ensure that regulatory authorities do not approve permit applications for mines that would make worse pollution overloads that already exist. Congress certainly intended, the commenter stated, that SMCRA regulatory authorities would perform CHIAs and make material damage findings that are consistent with the letter and underlying purpose of section 303(d) of the Clean Water Act, 33 U.S.C. 1313(d), which requires the imposition of sharply reduced effluent limits or the denial of National Pollutant Discharge Elimination System (NPDES) permits in order to restore the quality of streams overloaded with pollutants. The commenter referred to 30 U.S.C. 1292(a)(3) (requiring construction of SMCRA to avoid superseding, amending, modifying, or repealing the Clean Water Act).

In response, the WVDEP's July 1, 2003, letter did not address the specific points made here by the commenter. However, CSR 46-1 clearly sets forth the numerical water quality standards for streams and stream segments in West Virginia. Additionally, CSR 46-1 does not provide for or allow the discharge of pollutants that would make worse pollution overloads that already exist. Furthermore, CSR 38-2-14.15.b, like 30 CFR 816/817.42, clearly provides that discharges from areas disturbed by surface mining shall not violate effluent limitations or cause a violation of applicable water quality standards. Therefore, we cannot agree that it is the WVDEPs intention to allow discharges from mines that would not comply with effluent limitations or make worse pollution overloads that already exist.

7. A commenter stated that approval of the amendments at CSR 38-2-2.39 and CSR 38-2-3.22.e. would impair or preclude effective citizen participation in and OSM oversight of the administration and enforcement of the West Virginia program. The commenter asserts that the amendments at CSR 38-2-2.39 and CSR 38-2-3.22.e. replace predetermined, quantitative material damage criteria with a vague, subjective definition that would surely confound any citizen's effort to independently detect or prove a violation of the standard. The cost and restricted availability of experts whom a citizen would necessarily have to retain in any attempt to prove a violation of such an amorphous standard will almost certain chill public participation in its enforcement well below the freezing level.

We disagree with this comment. None of the amendments that the State is proposing affect in any way the public participation provisions of the approved West Virginia program. In addition, as it stated in its July 1, 2003, letter, the WVDEP will consider the existing and designated uses and numerical water quality standards for West Virginia streams and stream segments at CSR 46-1 when making CHIAs. These numerical water quality standards are the predetermined, quantitative standards with specific parameters and limits or ranges that WVDEP's CHIA reviewers will consider in making CHIA determinations, and that the public can use to monitor compliance.

8. One commenter addressed the amendments to CSR 38-2-5.2 concerning intermittent or perennial streams. The commenter stated that, “the changes delete three explicit requirements, and substitute in their place the requirement that the activities will not adversely affect “the water quantity and quality or other environmental resources of the stream'.” The commenter stated that the amended rule is sufficiently vague that the practice of burying intermittent or perennial streams may arguably be approvable by the WVDEP, because burying streams would not directly contradict the letter of the rule. The commenter stated that, “this clear attempt to weaken the existing rule should be disapproved.”

As we discussed above in Finding 5, we have determined that as amended, the revisions to section CSR 38-2-5.2.a. concerning intermittent or perennial streams render that provision substantively identical to the counterpart Federal regulations at 30 CFR 816.57(a)(1) and (b). Therefore, we found that the amendments can be approved. We also noted in Finding 5, that the State counterpart to the Federal regulations at 30 CFR 816.57(a)(2) concerning stream channel diversions was previously approved and is located at CSR 38-2-5.3.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendments from various Federal agencies with an actual or potential interest in the West Virginia program by letters dated May 30, 2001 and July 25, 2003 (Administrative Record Numbers WV-1215 and WV-1367, respectively).

By letter dated June 25, 2001 (Administrative Record Number WV-1224), the U.S. Fish and Wildlife Service (USFWS) provided the following comments.

The USFWS stated that the deletion of the definition of “cumulative impact” as meaning the hydrologic impact that results from the cumulation of flows from all coal mining sites to common channels or aquifers is a serious concern to the USFWS. The USFWS also stated that it is also concerned with the deletion of the language of that definition that states cumulative impact should be minimized.

The USFWS stated that cumulative impact assessments are required by the National Environmental Policy Act (NEPA) and by the Council on Environmental Quality's (CEQ) regulations requiring agencies to address cumulative effects. As stated in the CEQ regulations for implementing NEPA, the USFWS stated, cumulative effects are defined as the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. “We have ongoing concern,” USFWS stated, “for the cumulative impacts occurring from individual mountaintop mining operations on the ecological functioning of entire watersheds and believe that the law should address this very important issue more thoroughly rather than with less scrutiny.” The USFWS recommended that these changes not be approved.

In response, the deletion of the definition of “cumulative impact” does not mean that the WVDEP will not be conducting cumulative hydrologic impact assessments. CSR 38-2-3.22.e continues to require the WVDEP to conduct a CHIA that is sufficient to determine whether the proposed mining operation has been designed to prevent material damage to the hydrologic balance outside the permit area. In addition, the State regulations continue to require the permit applicant to provide probable hydrologic consequences (PHC) information (at 38-2-3.22.a) and to provide surface and groundwater monitoring plans (CSR 38-2-3.22.g and 3.22.h, respectively). The State's regulations continue to contain, at CSR 38-2-2.39, the definition of cumulative impact area. In addition, the State explained in its July 1, 2003, letter, that the WVDEP's CHIA process considers the numerical limits and water resource uses designated at CSR 46-1 to make the required CHIA. Therefore, under the approved State program, the State will continue to evaluate cumulative hydrologic impacts. Furthermore, actions of State regulatory authorities under their approved State coal regulatory programs are not subject to NEPA review.

The USFWS stated that in the new language added to CSR 38-2-3.22.e., the terms “long term” and “significant adverse impact” are not defined and therefore are open to individual interpretation. The USFWS recommended that this subsection contain a definition of these terms. Also, the USFWS stated, this definition effectively eliminates any consideration of short-term impacts to the hydrologic balance with no regard to the degree of those impacts. The USFWS further stated that it considers the elimination of any consideration of short-term impacts to be “a serious shortcoming in protection of fish and wildlife resources.” The USFWS recommended that these changes not be approved.

In response, there are, indeed, undefined words in the definition of “material damage to the hydrologic balance outside the permit areas.” However, the State's use of such words as “long term” and “significant adverse impact” in defining material damage does not render the State's definition less effective than SMCRA or the Federal regulations, because there is no Federal counterpart to this term. In accordance with SMCRA and the Federal regulations, the State provision requires a CHIA to determine whether the proposed operation has been designed to prevent material damage outside the permit area. Finally, the State's proposed definition does not supersede or prohibit compliance with any State or Federal water quality standards. Furthermore, short-term impacts will be considered. The NPDES effluent limitations established for a proposed permit will apply, as will all applicable State and Federal water quality standards. As we noted above in Finding 2, we determined that the definition of “material damage to the hydrologic balance outside the permit areas” does not render the West Virginia program less effective than the Federal CHIA regulations and can be approved.

The USFWS stated that it opposes the changes to this provision. The USFWS specifically objected to the deletion of the language that required that mining activity within one hundred feet of an intermittent or perennial stream not adversely affect the normal flow or gradient of the stream, adversely affect fish migration or related environmental values or materially damage water quantity or quality. The USFWS stated that given that hundreds of miles of West Virginia's headwater streams have been permanently filled as a result of surface coal mining, it believes that protection of aquatic resources should be strengthened in the West Virginia program. The USFWS recommended that these changes not be approved. In response, and as we stated above in Finding 5, as amended, section CSR 38-2-5.2.a. is substantively identical to the counterpart Federal regulations at 30 CFR 816.57(a)(1) and (b) and can be approved. We also noted that the State counterpart to the Federal regulations at 30 CFR 816.57(a)(2) concerning stream diversions was previously approved and is located at CSR 38-2-5.3.

By letter dated August 27, 2003, and an e-mail message dated August 19, 2003 (Administrative Record Numbers WV-1375 and WV-1374, respectively), the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) responded and stated that it has reviewed the additions and changes, and has determined that there is no inconsistency with MSHA's regulations. Most of the changes pertain to hydrologic impacts of mining and do not affect MSHA programs.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

On May 29, 2003, we asked for concurrence on the amendments from EPA (Administrative Record Number WV-1214). On November 23, 2001 (Administrative Record Number WV-1252) EPA sent us its written concurrence with comments. EPA stated that there are no apparent inconsistencies with the CWA, NPDES regulations, or other statutes and regulations under the authority of EPA. EPA said that it is providing its concurrence with the understanding that implementation of the amendments must comply with the CWA, NPDES regulations, and other statutes and regulations under its authority. On July 25, 2003, we asked the EPA for its concurrence on the July 1, 2003, letter from the WVDEP that provided further clarification concerning proposed amendments regarding cumulative impact, material damage, and government-financed construction at CSR 38-2-2.39, 3.22.e, and 3.31.c, respectively (Administrative Record Number WV-1368). On August 19, 2003, EPA sent us its written concurrence with comments (Administrative Record Number WV-1372).

In its August 19, 2003, letter, EPA stated that WVDEP's clarification letter addresses “cumulative impact” and “material damage,” two of the issues that the EPA had concerns and recommendations. EPA stated that it feels that its recommendations on these issues as well as others addressed in its November 23, 2001, letter still have merit and should be considered for inclusion. Nevertheless, EPA stated, WVDEP's July 1, 2003, clarification letter stresses its commitment to require compliance with water quality standards, EPA's main concern.

EPA provided the following comments on the proposed amendments in its November 23, 2001, letter.

EPA recommended that the definition of cumulative impact not be deleted, and that wording be added to the definition to clarify that it includes impacts from past, present, and reasonably foreseeable future activities. EPA stated that it is concerned that the deletion of the definition would leave that term cumulative impact vague and would subject it to individual interpretation. EPA stated that this could result in less environmental focus during preparation of a CHIA which is required for new mining operations. EPA stated that where cumulative impacts are large enough to cause non-compliance with water quality standards, including the anti-degradation policy, they constitute a violation of the CWA, even if the NPDES permits require compliance with applicable technology-based effluent guideline limits.

As we noted above in Finding 1, the deletion of the definition of “cumulative impact” does not render the West Virginia program less effective because there is no Federal definition of cumulative impact as the term relates to CHIA. We also noted that the State's existing definition of “cumulative impact area” at CSR 38-2-2.39 clearly states that cumulative impact area means the area, including the permit area, within which impacts resulting from the proposed mining operation may interact with the impacts of all anticipated mining on surface and groundwater systems. The State's definition of “cumulative impact area” was determined earlier to be substantively identical to the counterpart Federal definition of “cumulative impact area” at 30 CFR 701.5. We believe that the impacts due to past mining are captured via the surface and ground water baseline data required by CSR 38-2-3.22. Therefore, in its CHIA assessment, the State will be considering the impacts from past, present, and anticipated future mining operations in the cumulative impact area. The WVDEP's July 1, 2003, letter further clarified that other sections of the State rules require the applicant to show no material outside the permit area and to assess cumulative impacts within the cumulative impact area. We concur with EPA's comment that where cumulative impacts are large enough to cause non-compliance with water quality standards, including the anti-degradation policy, they could constitute a violation of the CWA, even if the NPDES permits require compliance with applicable technology-based effluent guideline limits.

EPA recommended that the definition of material damage be expanded to include “violation of water quality standards.” EPA stated that water quality standards require protection of designated uses as well as existing uses, compliance with anti-degradation policy, and do not exempt short term adverse impacts. We agree that water quality standards require protection of designated uses as well as existing uses, compliance with anti-degradation policy, and do not exempt short term adverse impacts. In its July 1, 2003, letter, the WVDEP stated that the WVDEP approach considers the numerical water quality limits and the water resource use designated by the water quality programs. The WVDEP further stated that the uses are outlined in the State's rules at CSR 46-1. Under SMCRA and the Federal regulations, the purpose of the CHIA is to determine, for permit approval purposes, whether the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area. We believe, as discussed above in Finding 2, that the State's program amendment does not render the West Virginia program less effective than the Federal CHIA provisions and can be approved.

EPA stated that, although unanticipated remining discharges may not be a cause for blocking future SMCRA permits, it wants to make sure that it is understood that remining companies are not exempt from NPDES permit violations which may arise from unanticipated discharges. EPA stated that where there may be a question about a potential unanticipated discharge during remining, such as release of water caused by breaking into an adjacent abandoned mine pool, EPA recommended that pre-remining exploration, boreholing, and reviewing of old mine maps be conducted to minimize this possibility. We concur that remining operations are not exempt from NPDES permit violations that arise from unanticipated discharges, and that appropriate pre-mining exploration should be conducted to minimize the possibility of breaking into adjacent abandoned mine pools. The State's approved program would allow such exploration if it is deemed necessary during remining operations.

EPA recommended that the entire current definition be retained, since it is more comprehensive about measures for environmental protection. EPA also stated that the most important part of the definition has been kept—the requirement for compliance with water quality standards. EPA stated that the proposed wording which prohibits adverse effects on water quantity and quality and other environmental resources should provide an added measure of environmental protection, with one exception—the proposed change from “or” to “and” in reference to “water quantity or quality.” EPA stated that the proposed word “and” implies that there must be adverse effects to both water quantity and quality before the activities are prohibited. EPA recommended keeping the word “or” which clarifies that adverse effects to either water quantity or quality are prohibited. EPA also stated that the proposed deletion of adverse effects on stream gradient and fish migration, as a reason for prohibiting surface mining activities, appears to be designed to accommodate construction of valley fills. EPA stated that filling of the waters of the U.S. requires authorization under Section 404 of the CWA. As we stated above in Finding 5, the State's proposed stream buffer zone requirements at CSR 38-2-5.2.a (along with CSR 38-2-5.3) are substantively identical to the counterpart Federal regulations at 30 CFR 816/817.57(a) and, therefore, can be approved. In addition, there is nothing in the proposed amendment that prevents or prohibits compliance with section 404 of the Clean Water Act.

Based on the findings above, we are approving the amendments to the West Virginia program sent to us on May 2, 2001, and clarified by letter dated July 1, 2003. However, we are deferring our decision on the amendments at CSR 38-2-3.31.a and c regarding funding for government-financed construction until the State adds counterparts to the Federal regulations at 30 CFR 707.5 and 874.17.

To implement this decision, we are amending the Federal regulations at 30 CFR part 948, which codify decisions concerning the West Virginia program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that a State program demonstrate that such State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempt from review by the Office of Management and Budget under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. The basis for this determination is our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) Considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.

Section 118 of the Copyright Act, 17 U.S.C., creates a compulsory license for the use of published nondramatic musical works and published pictorial, graphic, and sculptural works in connection with noncommercial broadcasting. Terms and rates for this compulsory license, applicable to parties who are not subject to privately negotiated licenses, are published in 37 CFR part 253 and are subject to adjustment at five-year intervals. 17 U.S.C. 118(c).

The most recent proceeding to consider the terms and rates for the section 118 license occurred in 2002. 67 FR 15414 (April 1, 2002). Final regulations governing the terms and rates of copyright royalty payments with respect to certain uses by public broadcasting entities of published nondramatic musical works, and published pictorial, graphic, and sculptural works for the license period beginning January 1, 2003, and ending December 31, 2007, were published in the Federal Register on December 17, 2002. 67 FR 77170 (December 17, 2002).

Pursuant to these regulations, on December 1 of each year the Librarian shall publish a notice of the change in the cost of living as determined by the Consumer Price Index (all consumers, all items) during the period from the most recent Index published prior to the previous notice, to the most recent Index published prior to December 1, of that year. 37 CFR 253.10(a). The regulations also require that the Librarian publish a revised schedule of rates for the public performance of musical compositions in the ASCAP, BMI, and SESAC repertoires by public broadcasting entities licensed to colleges and universities, reflecting the change in the Consumer Price Index. 37 CFR 253.10(b). Accordingly, the Copyright Office of the Library of Congress is hereby announcing the change in the Consumer Price Index and performing the annual cost of living adjustment to the rates set out in § 253.5(c).

The change in the cost of living as determined by the Consumer Price Index (all consumers, all items) during the period from the most recent Index published before December 1, 2002, to the most recent Index published before December 1, 2003, is 2% (2002's figure was 181.3; the figure for 2003 is 185.0, based on 1982-1984=100 as a reference base). Rounding off to the nearest dollar, the royalty rates for the use of musical compositions in the repertories of ASCAP, BMI, and SESAC are $254, $254, and $82, respectively.

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document.

On February 12, 1999, EPA published a document in the Federal Register (64 FR 7091) beginning the new IBR procedure for Nebraska. Today EPA is updating the IBR material.

EPA is also making minor corrections to the table in § 52.1420(c) as follows:

On February 14, 1996 (61 FR 5701), EPA approved and incorporated by reference revisions to Lincoln-Lancaster County Air Pollution Control Program, Article 2, Section 9. We are correcting the state effective date for Section 9, Article 2 to reflect that previous approval.

On February 14, 1996 (61 FR 5701), EPA approved and incorporated by reference revisions to City of Omaha, Chapter 41, Article IV, for 41-61. We are correcting the entries for 41-61 to reflect that previous approval.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by updating citations.

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 . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 30, 2004. 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).)

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

National Environmental Policy Act . This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act . The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

Regulatory Classification . This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Paperwork Reduction Act . This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp.; p. 252.

Executive Order 12778, Civil Justice Reform . This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp.; p. 309.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate, has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

Standard No. 301, Fuel system integrity, sets performance requirements for the fuel systems of vehicles with a gross vehicle weight rating (GVWR) of 4,536 kg (10,000 pounds) or less. The standard, which was issued in the 1970s, limits the amount of fuel spillage from fuel systems of vehicles during and after being subjected to a frontal, rear, or side impact test.

In the frontal impact test, the test vehicle is driven forward into a fixed barrier at 48 km/h (30 mph). In the rear impact test, a 1,814 kg (4,000 pound) barrier moving at 48 km/h (30 mph) is guided into the full width of the rear of a stationary test vehicle. In the side impact test, a 1,814 kg (4,000 pound) barrier moving at 32 km/h (20 mph) is guided into the side of a stationary test vehicle. The standard sets three separate limits on fuel spillage from crash-tested vehicles: 28 grams (1 ounce) by weight, during the time period beginning with the start of the impact and ending with the cessation of vehicle motion; a total of 142 grams (5 ounces) by weight during the 5-minute time period beginning with the cessation of vehicle motion; and 28 grams (1 ounce) by weight during any 1-minute interval in the 25-minute period beginning with the end of the 5-minute period.

Similar fuel spillage limits apply to vehicles tested in accordance with the standard's static rollover test procedure. 1 The rollover test is conducted after frontal, rear, and side impact tests.

Preserving fuel system integrity in a crash is critical to preventing occupant exposure to fire. Although vehicle fires are relatively rare events (occurring in less than 1 percent of vehicles in towaway crashes), they tend to be severe in terms of the number of casualties caused. According to an analysis of data in the agency's Fatality Analysis Reporting System (FARS) in 2001, 3.5% percent (1,449 fatalities) of light vehicle occupant fatalities occurred in crashes involving fire. 2 Overall, the fire itself was deemed to be the most harmful event in the vehicle for about 24 percent (341) of these fatalities.

An analysis of 1993-2001 National Automotive Sampling System (NASS) data indicated that each year an average of about 15,820 occupants were exposed to a post-crash fire in passenger cars and light vehicles (vans, pickup trucks, and multipurpose passenger vehicles) with a GVWR of 4,536 kg (10,000 pounds) or less that were towed away after the fire. Of those occupants, about 736 (6 percent) received moderate or severe burns (AIS 2 and greater). Three-quarters of those with moderate and more severe burns had second or third degree burns over more than 90 percent of the body. Moreover, the agency notes that maximum-severity (AIS 6) burns are nearly always fatal. These statistics underscore the importance of preserving fuel system integrity in a crash in order to prevent vehicle fires.

On April 12, 1995, NHTSA published an Advance Notice of Proposed Rulemaking (ANPRM) announcing the agency's plans to consider upgrading Standard No. 301. 3 The agency explained that it was considering using a three-phase approach to upgrade the requirements of the standard. Phase 1 would focus on requirements for component performance ( e.g., fuel tanks, fuel pumps, and electrical systems); Phase 2 would address system performance ( e.g., shutting down fuel supply and potential ignition sources in the event of a breach in the fuel system); and Phase 3 would address issues related to environmental and aging effects ( e.g., the potential relationship of vehicle aging to fire occurrence). The agency sought comment on this approach as well as several other issues.

NHTSA received comments from component and vehicle manufacturers, industry associations, consumer advocacy organizations, and other organizations. After reviewing these comments and further analysis, the agency made the following decisions.

First, after examining the effectiveness of fuel pump shut-off devices in reducing post-crash vehicle fires, the agency decided not to pursue rulemaking with respect to fuel system component performance. The agency's review of NASS data did not reveal a significant difference in the rate or severity of post-crash fire occurrence in vehicles with and vehicles without fuel pump shut-off devices. Research conducted under the General Motors (GM) C/K settlement agreement  4 confirmed this finding during crash testing with and without fuel pump shut-off devices. During crash testing, there was no difference in the rate of fuel leakage or severity of post-crash fire occurrence between vehicles equipped with shut-off switches (Ford) and those without (GM, Chrysler and Honda).

Second, the agency decided not to pursue rulemaking related to environmental and aging effects. The agency agreed with vehicle manufacturer comments that further studies were needed to define the problems associated with environmental and aging effects and determine whether rulemaking would be appropriate to address them. The agency stated that it might revisit this issue upon further study. As part of the GM settlement, GM contracted with Southwest Research Institute to conduct research on the environmental factors and aging effects on fuel system components. This report showed some effects of corrosion on metal components and some effects of hot arid conditions on rubber components, and little effect on plastic components. The findings were inconclusive, but did not indicate serious problems affecting fuel system crash performance. No further agency action is planned at this time. 5

Third, the agency decided to investigate the feasibility and practicability of upgrading Standard No. 301's rear and side impact requirements. The agency reviewed real world crash data to determine what types of rear impact crashes resulted in “moderate,” “severe,” and “very severe” fires. 6 Next, the agency analyzed the data to determine whether it was the fire or the impact of the crash that caused the fatalities and injuries in the fire-related crashes. NHTSA then examined the data to determine the characteristics of rear crashes that were causing fire-related fatalities and injuries and developed a new crash test procedure to simulate the most frequent crash scenario that leads to fire and fire-related fatalities and injuries in rear impact crashes. The agency then performed seventeen crash tests using the new crash test procedure. 7

After reviewing the comments on the 1995 ANPRM and analyzing the real world crash data and data from the seventeen crash tests with the new crash test procedure, the agency published a Notice of Proposed Rulemaking (NPRM) on November 13, 2000. 8 In the NPRM, the agency tentatively concluded that the proposed rear impact test procedure would reduce fire-related fatalities and injuries from rear impact crashes. Thus, the agency proposed to replace Standard No. 301's current rear impact test procedure with one that would specify impacting the rear of the test vehicle at 80 ± 1 km/h (50 mph) with a 1,368 kg (3,015 pound) moving deformable barrier (MDB) at a 70 percent overlap with the test vehicle. That barrier is very similar to that used under Standard No. 214, Side impact protection, in dynamic side impact testing except that the face of the MDB used in rear impact testing under Standard No. 301 would be 50 mm (2 inches) lower than the face of the Standard No. 214 barrier to simulate pre-crash braking. 9

The agency noted that the proposed test procedure would simulate a type of rear vehicle-to-vehicle collision that can result in post-crash fire in an otherwise survivable crash: a high speed offset rear strike to the vehicle that results in fuel leakage from a breach in the fuel system and, potentially, a rapidly spreading fire that results in fatalities and injuries. The agency also noted that NASS estimates show that the majority of fatal and nonfatal occupant burn injuries in rear impact crashes occurred in crashes in the 34 to 48 km/h (21 to 30 mph) delta-v range. The agency stated that the elements of the proposed offset rear impact test procedure were accordingly chosen to simulate vehicle-to-vehicle crashes with a delta-v range of 32 to 48 km/h (20 to 30 mph).

The agency tentatively concluded that the proposed offset rear impact test procedure was practicable. The agency stated:

NHTSA did not propose to require manufacturers to place each vehicle's fuel tank forward of the rear axle, as suggested by Advocates for Highway and Auto Safety (Advocates) in its comment on the ANPRM, because the agency believed such a requirement would be unnecessary and too design restrictive. The agency noted that the fuel tank of the 1996 Ford Mustang, which passed the proposed upgraded test procedure, is located behind the rear axle. The agency stated that this test demonstrated that structural and component designs are more critical factors than fuel tank location in maintaining fuel system integrity.

NHTSA also did not propose to use a heavier barrier ( e.g. , a 4,000-pound barrier) to simulate impacts by light trucks and sport utility vehicles, again as suggested by Advocates, because in an 80 km/h (50 mph) rear impact offset crash test, a 3,015-pound barrier effectively reproduces the damage profile seen in real world crashes that most often lead to fires. The agency stated that if a heavier barrier were used, the proposed rear impact crash test would no longer reproduce that profile. The agency also noted that it had conducted its research crash tests with a 3,015-pound barrier, and that further research and development would have to be conducted before a heavier barrier could be proposed for use in any test procedure.

NHTSA proposed to replace the current lateral (side) impact crash test in Standard No. 301 with the side impact crash test currently specified in Standard No. 214. The Standard No. 214 side impact crash test specifies that a stationary vehicle be struck on either side by a 1,368 kg (3,015 pound) MDB moving at a speed of 54 km/h. 12

The agency reasoned that test analyses show that the Standard No. 214 side impact crash test exposes a tested vehicle to higher crush energy and crash forces, and to greater changes in velocity, than the existing Standard No. 301 side test. Test data also show the Standard No. 214 test exposes the fuel system components to greater forces.

Moreover, the agency reasoned that replacing the Standard No. 301 side test with the Standard No. 214 side impact test would reduce certification testing costs for manufacturers because they would only have to conduct one type of side impact test instead of two. The agency also noted that commenters on the ANPRM supported this change, stating that the change would be beneficial from both a safety and a cost perspective.

In the NPRM, the agency also stated that it was considering adding a post-crash door openability test requirement to Standard No. 206. 13 NHTSA noted that NASS data indicate that potential escape from a post-crash vehicle fire was made more difficult for occupants with moderate or more serious burns because, among other reasons, they were sitting next to a door that was jammed shut by crash forces. The agency also noted that real-world crash reports indicate that there were instances in which fire suddenly started several minutes after the vehicle was impacted. Thus, the agency concluded that it is critical that occupants be able to exit the vehicle quickly and easily after a crash that could lead to a fire. The agency requested comment on whether such a requirement was necessary and, if so, what type of requirements would be appropriate, objective, and repeatable.

NHTSA proposed a lead time of three years for the proposed upgraded rear impact test and one year for the change to the Standard No. 214 side impact test. The agency stated that a three-year lead time appeared to be necessary for the proposed upgraded rear impact test because: (1) All of a manufacturer's makes and models would have to be tested under the upgraded test to determine compliance; and (2) for those vehicles that did not comply, countermeasures would have to be incorporated into designs and then implemented in engineering and manufacturing. The agency stated that only one year of lead time was needed for the new side impact test because few, if any, design changes would be necessary.

NHTSA stated that between the date the final rule was issued and the date it took effect, manufacturers would be allowed the option of certifying vehicles under the existing Standard No. 301 tests or under the new tests. However, manufacturers would have to irrevocably select a test when they certified the vehicle.

The agency prepared a Preliminary Regulatory Evaluation (PRE) describing the costs and benefits of the proposed upgraded test procedures. 14 NHTSA estimated that the average cost for vehicles that need to be modified to comply with Standard No. 301's requirements under the proposed test procedures would be $5 per vehicle. The agency also estimated that 46 percent of the vehicle fleet would have to be so modified. 15 Since approximately 15.2 million vehicles are sold in the United States each year, the agency estimated that the total cost of the proposed rule would be $35 million each year.

NHTSA estimated that the proposed rule would save from 8 to 21 lives annually, once all vehicles on the road meet Standard No. 301's requirements under the proposed upgraded test procedures.

In the NPRM, the agency also requested comments on several issues. The questions are repeated below.

1. Are there any real-world data, other than the data that the agency has already analyzed for this proposed upgrade, that may better describe the relationship between the risk of occupant injury due to fire and crash severity?

2. Vehicle manufacturers. How many of your vehicle models would need some redesign to comply with the proposed offset rear impact and side impact test procedures? Describe the type and extent of design changes. What costs would be associated with those redesigns? Would you have any significant problems completing necessary redesigns within the three-year lead time? If so, please identify those problems and indicate how much lead time you would need.

3. What impact would the proposed changes have on vehicle safety?

4. Are the proposals sufficient and appropriate for the different sizes and types of vehicles?

5. In the various crash tests that were performed during the research for this rulemaking, the values of head and neck injury criteria measured by the responses of the two front Hybrid III anthropomorphic test devices were much higher than acceptable thresholds. Direct contact of the head of the dummy with the interior of the vehicle compartment, which occurred when the front seat rotated backward excessively due to the rear impact, contributed to these high values. These high values raise concerns about head and neck protection of the occupants. The rear impact testing also raised concerns about the seat back strength, as most seat backs collapsed in those tests. What do the high HIC values and neck loadings registered by the test dummies in those tests indicate about the real world potential for trauma injury to vehicle occupants in rear impacts? Could future vehicles be designed to provide both the improved fuel system integrity necessary to meet the more stringent requirements proposed in this NPRM and, at the same time, provide improved occupant protection in such impacts?

6. How do seat back failures influence the injury potential in rear impacts? Please provide data and other information that would aid the agency in determining the need for improving seat back strength and the appropriate requirements for doing so.

7. Should the agency require vehicles to retain fuel system integrity in tests with 5th percentile female dummies, as well as with 50th percentile male dummies, as is currently required?

8. NHTSA is proposing to eliminate the second sentence in S7.1.6(b) from Standard No. 301. That sentence reads: “If the weight on any axle, when the vehicle is loaded to unloaded vehicle weight plus dummy weight, exceeds the axle's proportional share of the test weight, the remaining weight shall be placed so that the weight on that axle remains the same.” Given the specifications in S7.1.6(a) concerning the placement of rated cargo and luggage capacity weight in the luggage area and the placement of dummies, is the second sentence in S7.1.6(b) needed for conducting Standard No. 301 compliance tests?

9. For the rear offset MDB test conditions, the agency is proposing that the barrier be the same as the one shown in Figure 2 of Standard No. 214 and specified in 49 CFR Part 587, with one exception. The exception is that the face of the barrier would be positioned in the rear impact test so that it is 50 mm (2 inches) lower than the barrier face height specified in the current Figure 2 of Standard No. 214. 16

10. With respect to side impact crashes that result in fire, this proposal to upgrade Standard No. 301 addresses vehicle-to-vehicle crashes. There are approximately two to eight times as many side collision fires (depending on vehicle type) when the object struck is another vehicle compared to a narrow object such as a pole. However, the side collision fire rate for cars, light trucks, and vans is highest when a narrow object is struck. Would it therefore be reasonable to consider a pole side impact test as part of a subsequent upgrading of Standard No. 301?

11. Should the agency amend Standard No. 301 to prohibit fuel leakage in any crash test under Standard No. 208?

NHTSA received comments to the NPRM from seven vehicle manufacturers (Subaru, DaimlerChrysler, Porsche, Volkswagen, Ford, Honda, and General Motors), two vehicle manufacturer associations (Alliance of Automobile Manufacturers  17 and National Truck Equipment Association), three engineering firms (American Automotive Design, Dynamic Safety, and Syson-Hille and Associates), a test laboratory (Transportation Research Center), the Insurance Institute for Highway Safety, and a consumer advocate group, Advocates for Highway and Auto Safety. Their comments are summarized below by issue.

None of the commenters opposed the proposed rear impact test procedure upgrade.

The Alliance suggested that significant vehicle redesign will likely be required to meet the high speed rear crash requirements. Volkswagen (VW) stated that the rear end structure of small cars will need to be made stiffer, which could result in increased acceleration imposed on occupants in more common lower speed rear crashes. Honda commented that increased vehicle body and fuel tank deformation would occur, even on vehicles that pass the fuel leak requirements.

DaimlerChrysler (DC) stated its belief “that the proposal is likely to require significant changes to vehicle structure and design, which are yet to be fully defined and realized.” DC argued that the proposed upgrade is a “major rulemaking effort which will present many challenges to the industry that may not yet be fully identified.”

DC also expressed concerns with using a MDB at the proposed impact speed (80 km/h). DC stated that in impacts between a MDB and a vehicle at 80 km/h, DC has observed complete crushing of the barrier face and ensuing contact with the rigid cart backer plate and contact between the cart uprights and the impacted vehicle. DC recommended that NHTSA reevaluate the proposed test procedure upgrade to determine if the anticipated benefits could be achieved with a lower impact speed (such as 56-64 km/h), or provide design changes to the MDB and cart system.

GM and Ford observed bottoming of the barrier face to the backing plate and contact between the barrier uprights and the vehicle in some rear impact crash tests. GM also stated that the barrier face can underride the struck vehicle and, upon rebound, the upright that contacted the vehicle can become “caught” on vehicle structure ( e.g. , bumper, frame cross member, etc.), with undetermined effects on the struck vehicle. GM and Ford suggested that some changes to the MDB might be necessary. Ford recommended that the agency investigate “rounding the corners of the deformable portion of the barrier and increasing its depth.” Ford stated that its testing indicated that the right angle corners of the barrier face can “hang up on trim,” potentially affecting test repeatability.

Honda commented that it had conducted rear impact crash tests in accordance with the proposed test procedure. Honda noted that the MDB sometimes over-rode the rear of the test vehicle, and that in these instances, the rear frame structure of the vehicle could not absorb crash energy sufficiently to meet the fuel leaking requirements of Standard No. 301. Honda also noted, “Even in instances when the rear frame functioned somewhat to absorb energy, the increased speed and the off-set impact caused extensive deformation of the fuel tank.” Honda stated that a vehicle in compliance with the proposed upgrade would have to absorb twice as much energy as a vehicle in compliance with Standard No. 301 as currently written. Honda argued that under the proposed upgrade, significant changes would have to be made to each of its vehicle models.

VW noted that the proposed rear impact would be to either side of the vehicle. VW recommended that this be changed so that the impact is on the side of the vehicle where the fuel filler pipe or filler neck is located. VW argued that impacting the side of the vehicle where the fuel filler pipe or filler neck is located would represent the worst case condition and establish a more objective requirement for enforcement purposes.

VW also commented that in order to assure compliance with the higher speed rear impact test, the vehicle rear end structure would have to be made stiffer, particularly in smaller cars. VW stated that this would tend to increase the potential for whiplash type injuries in lower speed crashes. VW recommended that NHTSA address this issue before issuing a final rule.

Ford commented that it has conducted voluntary, in-house 80 km/h vehicle-to-vehicle rear impact crash tests to evaluate fuel system integrity since the mid-1980s. Ford supported the agency's proposed test upgrade, stating, “Ford believes this test can provide a robust evaluation of a fuel system's integrity.”

Syson-Hille commented that other vehicle manufacturers, such as GM, began conducting 80 km/h vehicle-to-vehicle rear impact crash tests in the 1980s, and that Mercedes-Benz marketing materials note that its vehicles have been designed to provide fuel system integrity in offset rear impact crashes since the early 1980s.

The Insurance Institute for Highway Safety (IIHS), Advocates for Highway and Auto Safety (Advocates), and American Automotive Design (AAD), urged NHTSA to require the use of a 4,000-pound rigid barrier, instead of the 3,015-pound MDB. IIHS and Advocates urged this based on their view that the Standard No. 214 barrier does not reflect the characteristics of pickup trucks and sport utility vehicles (SUV) and thus may not reproduce the patterns or extent of deformation seen when those types of vehicles strike cars in the side or rear.

None of the commenters opposed the proposed side impact test procedure upgrade.

DC recommended that, as in the proposed rear impact test procedure, the agency specify that the MDB be lowered 50 mm (2 inches) in the proposed side impact test procedure. DC stated that data indicate that pre-impact braking occurs in 54 percent of side impacts.

Vehicle manufacturers generally opposed adding a post-crash test door operability requirement to Standard No. 206. The Alliance and GM agreed with and supported the logic regarding a post-crash test door operability requirement. However, the Alliance and GM stated that Standard No. 206 addresses component level performance, while a post-crash test door operability requirement would address vehicle level performance. The Alliance stated that adding such a requirement to Standard No. 206 would necessitate the addition of vehicle crash test requirements to the standard as well. The Alliance also stated,

GM stated that such a requirement would be more appropriate if it were added to crash tests that are already required for other safety standards, such as Standard No. 208, Occupant crash protection, Standard No. 214, Side impact protection, or Standard No. 301. GM noted that it currently performs door operability evaluations following most barrier tests. 18 GM argued that NHTSA should develop meaningful, appropriate, objective, and repeatable requirements for post-crash test door operability after further research and through separate rulemaking.

DC argued that NHTSA has not provided sufficient evidence to demonstrate the need for adding a post-crash test door operability requirement to Standard No. 206. DC recommended that NHTSA conduct research to determine such a requirement's real world benefits, feasibility, and effects on vehicle design, cost, and weight. DC suggested that if NHTSA persists in such a rulemaking, the agency require only one operable door per vehicle.

Advocates supported adding a post-crash test door operability requirement to Standard No. 206. Advocates stated:

Syson-Hille also supported a post-crash test door operability requirement. Syson-Hille recommended that the agency require at least one door on two-door vehicles and three doors on four-door vehicles to be operable after a crash test.

The vehicle manufacturers all supported the three-year lead time proposed in the NPRM for the rear impact test upgrade, but recommended that the agency add a phase-in after that period. The Alliance recommended a four-year phase-in with an implementation schedule of 25 percent compliance the first year, 40 percent the second year, 70 percent the third year, and 100 percent the fourth year. The Alliance also recommended that the agency grant carry forward credits for early compliance.

The Alliance argued that a phase-in is necessary because the Alliance considered this to be a “major rulemaking, particularly in response to the substantially increased impact energy of the high speed rear offset impact testing proposed.” The Alliance stated:

DC supported the Alliance's recommended phase-in schedule. DC argued that such a phase-in would “allow the efficient phasing out of older models designed to the current requirements with replacements that are thoroughly designed, constructed and tested to meet the more stringent requirements without very costly and disruptive mid cycle manufacturing changes.”

Subaru recommended a three-year full phase-in, with complete compliance after the third year. Honda suggested a four-year phase-in with an implementation schedule of 10 percent, 30 percent, 70 percent, and 100 percent. Porsche supported the Alliance's recommended lead time but requested that the agency provide small volume manufacturers the option of coming into compliance at the 100 percent level in the third year of the phase-in with no requirements in the first two years.

IIHS stated that the proposed three-year lead time for the rear impact test upgrade should be sufficient.

Vehicle manufacturers supported the one-year lead time proposed in the NPRM for the side impact test upgrade, but recommended that the agency add a phase-in after this lead time. The Alliance and Ford recommended a four-year phase-in with an implementation schedule of 25 percent compliance the first year, 40 percent the second year, 70 percent the third year, and 100 percent the fourth year. The Alliance also recommended that the agency grant carry forward credits for early compliance.

IIHS stated that the one-year lead time proposed by the agency in the NPRM should be sufficient.

Honda commented that the agency's cost estimates were insufficient. Honda stated, “The cost of managing all the accompanying issues is at least 10 times greater than NHTSA's cost estimation.” Honda claimed that to meet the proposed rear impact test upgrade, “It will be necessary to change the thickness of the vehicle's rear structure, which requires the modification of existing dies and manufacturing of new dies and parts.”

VW questioned the safety benefits of the proposed test upgrades. VW stated:

The agency asked in the NPRM whether there were any real-world data, other than the data that NHTSA had already analyzed, that may better describe the relationship between the risk of occupant injury due to fire and crash severity.

The Alliance, GM, DC, and Ford stated that there were no such data. The Alliance and GM commented that both the FARS and NASS files might need to be modified to more accurately define any remaining fire risk.

In the NPRM, the agency noted that in the various crash tests that were performed during the research for this rulemaking, the values of head and neck injury criteria measured by the two front seat dummies were much higher than acceptable thresholds. The agency asked what these high injury values indicate about the real world potential for trauma injury to vehicle occupants in rear impacts.

The Alliance stated that its members would need access to more details of NHTSA's test program in order to respond to this question. 19 However, the Alliance argued that the issue of occupant protection in rear impacts is outside the scope of this rulemaking. The Alliance recommended that the agency address this issue in the ongoing Standard No. 202, Head restraints, rulemaking or in a possible future upgrade of Standard No. 207, Seating systems. The Alliance also commented that more research is needed to provide an appropriate level of seating system performance dealing with the proposed rear impact test upgrade.

Syson-Hille commented that both GM and Mercedes-Benz have been using 50 mph vehicle-to-vehicle rear impact tests, with occupant survival space criteria, since the 1980s. Advocates suggested that the agency consider upgrading requirements for the entire seating system (seat, seat back, and head restraint) to provide improved occupant protection in the proposed Standard No. 301 rear impact test upgrade.

In the NPRM, the agency asked how seat back failures influence injury potential in rear impacts. The agency also asked for data that would aid it in determining the need for improving seat back strength and the appropriate requirements for doing so.

The Alliance stated that without a definition of “seat back failure” it could not answer the question. However, the Alliance defined the optimal seat back strength as the balance between strength and flexibility to address both severe and minor impacts.

DC and Ford supported the Alliance's comments. DC commented that the issue of seat back strength is outside the scope of this rulemaking, and should be addressed in a possible future upgrade of Standard No. 207. Ford stated that seat back strength should be designed to enhance occupant safety in real-world crashes.

GM agreed with an upgrade of Standard No. 207 seat back strength requirements in the future. However, GM stated that this should be done in a separate rulemaking.

VW commented that a single optimal level of seat back strength is extremely difficult to define because of the range in impact severity (a function of impact speed and the impacting vehicle structure in real-world crash situations).

Advocates stated:

In the NPRM, the agency asked whether it should require vehicles to meet the requirements of Standard No. 301 in tests with 5th percentile female dummies as well as with the currently-required 50th percentile male dummies.

The Alliance, DC, GM, VW, and Ford opposed requiring the use of 5th percentile female dummies in Standard No. 301 rear impact tests. The Alliance stated that different dummy sizes would only change the total impact weight of the tested vehicles and would have little or no effect on the performance of the fuel system. However, GM supported the voluntary use of instrumented test dummies for research to understand better the mechanics and magnitude of the potential for injury for various dummy sizes in different crash situations.

Advocates supported requiring the use of 5th percentile female dummies in the proposed rear impact test procedure. Advocates stated this would help prevent occupant injury due to ramp up of the seat back. In addition, Advocates suggested that the agency require use of the 95th percentile male dummy in Standard No. 301 rear impact tests to help prevent occupant injury due to seat back failure.

In the NPRM, the agency proposed to eliminate the second sentence of S7.1.6(b) of Standard No. 301. That sentence reads:

The Alliance, Ford, and VW opposed the elimination of that sentence. The Alliance stated:

VW recommended that the agency incorporate the load distribution provisions of S7.1.6(b), which apply to multipurpose passenger vehicles, trucks, and buses, in S7.1.6(a), which applies to passenger cars. VW also suggested that the text of S7.1.6(a) and (b) be clarified to state that the weight placement and attachment must be out of the vehicle crush zone and done in a manner that does not interfere with vehicle crash deformation.

GM recommended that the agency revise the test vehicle loading conditions to read as follows:

GM also recommended that the agency replace the language in S8.1.1 of Standard No. 208, S6.1 of Standard No. 212, S7.7 of Standard No. 219, S7.1.6 of Standard No. 301, S7.1.6 of Standard No. 303, and S7.2.3 of Standard No. 305 with the same language as that quoted above. 20 GM stated that these changes would facilitate common understanding, eliminate any ambiguity that might be due to any differences in the language of these standards, parallel the wording of the test procedure, and agree with the agency's intent for the loading conditions to be consistent.

In the NPRM, the agency proposed that the MDB that would be used in the proposed rear impact test procedure upgrade be the same as the one shown in Figure 2 of Standard No. 214, except that the barrier face would be 50 mm (2 inches) lower. The agency requested comments on this proposed change.

DC, GM, and Ford supported the proposed lowering of the barrier face for rear impact testing. The Alliance and VW, however, questioned NHTSA's proposal to lower the barrier face for the rear impact testing. VW commented that the statistics used by NHTSA to justify the proposed change had not been verified. VW also stated,

In the NPRM, the agency noted that the side collision fire rate for passenger cars, light trucks, and vans is highest when a narrow object is struck. Thus, the agency asked whether it would be reasonable to consider a pole side impact test as part of a subsequent upgrading of Standard No. 301.

The Alliance, DC, GM, Ford, and Porsche opposed a pole side impact test. The Alliance stated that NHTSA would need to provide a full assessment of the safety basis if the agency undertook such a rulemaking. The Alliance also stated that the agency would need to propose a detailed test procedure, including pole contact locations, closing velocities, pole sizes, and modes of testing.

DC commented that any potential benefits of a pole side impact test “would be far outweighed by the added counter measures that such testing would require.” DC stated:

Advocates supported adding a pole side impact test to Standard No. 301. Advocates stated,

In the NPRM, the agency asked whether it should amend Standard No. 301 to prohibit fuel leakage in any crash test performed under Standard No. 208.

The Alliance and GM supported a future revision limiting fuel system leakage in any Standard No. 208 crash test to current Standard No. 301 requirements, if a meaningful safety benefit could be determined.

DC and Ford opposed a fuel leakage requirement in Standard No. 208 crash tests.

Advocates commented that the rates of fuel release and quantities currently permitted by Standard No. 301 are not consonant with fire prevention and occupant safety following a crash. Advocates recommended that the agency should show the real-world consequences of the rates and amounts of fuel spillage permitted by Standard No. 301, and, if the amounts are judged to be too lenient, revise them to minimize the chances of a post-crash fire.

IIHS and Dynamic Safety recommended that the agency adopt frontal offset crash test requirements in Standard No. 301. IIHS stated, “Frontal offset deformable barrier crash tests create deformation patterns commonly found in severe real-world crashes. The offset loading challenges the vehicle's ability to retain its structural integrity.”

In the NPRM, the agency noted that there are a large number of second-stage manufacturers that could be affected by the proposed rule. Second-stage manufacturers buy a chassis from a first-stage manufacturer and finish it to the consumer's specifications. The manufacturers that put a work-related body on a pickup truck chassis (such as a small tow truck) often perform manufacturing operations affecting the fuel system, both in the structure around the fuel tank and where the fuel filler neck attaches to the body. Other second-stage manufacturers use a van chassis or an incomplete vehicle for ambulances, small mobile homes, small school buses, etc.

Typically, the first-stage manufacturer provides the second-stage manufacturer with a body builder's guide that tells the second-stage manufacturer what additions or other modifications it can make and still either pass along the original equipment manufacturer's certification for compliance with Standard No. 301 (for chassis cabs) or otherwise be confident that the vehicle will comply (for other types of incomplete vehicles). To the extent that a second-stage manufacturer deviates from the guide, it would have to certify compliance on its own.

In the NPRM, the agency tentatively concluded that few final stage manufacturers would deviate from the body builder's guide.

The National Truck Equipment Association (NTEA)  21 disagreed with this tentative conclusion. The NTEA commented:

The NTEA stated that the proposed upgrade of Standard No. 301 could require second-stage manufacturers to conduct compliance testing, and that since most second-stage manufacturers are small businesses, such testing would be an unreasonable burden. 22

Dynamic Safety, IIHS, and Advocates all raised the issue of fuel siphoning after a fuel line is breached. Dynamic Safety stated:

Dynamic Safety commented that anti-siphon devices are readily available. Dynamic Safety stated that Ford and DC have been using fuel return line one-way check valves (known as “duckbill valves”) on many of their vehicles since the 1980s, and that GM has installed “siphon break” holes in some of its passenger car fuel return lines since the late 1980s.

IIHS stated, “The Institute strongly supports implementation of requirements designed to stop the flow of fuel after a collision.” Advocates strongly supported research into and consideration of fuel system flow interdiction through the use of various technologies, such as electric current shut-off devices that stop fuel pump delivery after a crash and manual or electrical inertia switches and check valves to block fuel delivery.

The amendments in this final rule are essentially the same as those proposed in the NPRM, but with compliance requirements for the rear impact upgrade to be phased-in. Instead of providing that all vehicles must comply at the end of a several year period, as proposed in the NPRM, the agency is providing that compliance with the rear impact upgrade will be phased-in over an additional three-year period, without credits for early compliance. The lead time for the side impact upgrade is the same as proposed.

As proposed in the NPRM, the final rule establishes a rear impact test procedure that specifies striking the rear of the test vehicle at 80 ± 1 km/h (50 mph) with a 1,368 kilogram (3,015 pound) MDB at a 70 percent overlap with the test vehicle. The MDB is located 50 millimeters (2 inches) lower than the face of the Standard No. 214 barrier to simulate pre-crash braking. This replaces the 48 km/h rear moving barrier crash test previously required under S6.2 of Standard No. 301.

Also as proposed, the final rule eliminates Standard No. 301's side crash test and replaces it with the side impact crash test currently specified in Standard No. 214. S6.3 of Standard No. 301 had required a vehicle's side to be impacted by a barrier moving at 48 km/h. This final rule incorporates into S6.3 the side impact crash test in Standard No. 214, which is also amended by the final rule to specify that a stationary vehicle be struck on either side by a 1,368 kg (3,015 pound) MDB moving at a speed of 53 ± 1km/h.

NHTSA notes that while it has conducted research to explore the desirability of revising the Standard No. 214 barrier, additional research would have to be conducted before the agency could decide whether proposing a revision might be worthwhile. Thus, even if a revision were ultimately adopted, it could not be implemented until well beyond the implementation of this upgrade to Standard No. 301.

Instead of providing that all vehicles comply at the end of a several year period, as proposed in the NPRM, the agency is providing that compliance with the rear impact upgrade will be phased in by increasing percentages of production over an additional three-year period, without credits for early compliance or compliance above the required percentages.

At least 40 percent of vehicles manufactured on or after September 1, 2006, but before September 1, 2007, must comply with the new rear impact requirements. At least 70 percent of the vehicles manufactured on or after September 1, 2007, but before September 1, 2008, will have to comply, and starting September 1, 2008, all vehicles manufactured will have to comply with the upgraded rear impact requirements. The final rule amends 49 CFR Part 586, establishing reporting and record keeping requirements concerning the phase-in. However, vehicles manufactured in two or more stages will not be required to meet the rear impact upgrade requirements until September 1, 2008, when all vehicles must be certified as complying.

All vehicles manufactured on or after September 1, 2004, must comply with the upgraded side impact requirements.

After reviewing real-world fire-related crash data, various vehicle offset crash tests, and the comments, NHTSA is adopting the rear impact test procedure as proposed. The final rule replaces Standard No. 301's current rear impact test procedure with one that specifies striking the rear of the test vehicle at 80 ± 1 km/h (50 mph) with a 1,368 kilogram (3,015 pound) MDB at a 70 percent overlap with either side of the test vehicle. The MDB face is located 50 millimeters (2 inches) lower than the face of the Standard No. 214 barrier to simulate pre-crash braking.

The agency is not adopting DC's recommended impact speed of 56-64 km/h for the reasons stated in the NPRM. Namely, the agency believes that the upgraded test procedure will simulate a type of rear vehicle-to-vehicle collision that can result in post-crash fire in an otherwise survivable crash: a high speed offset rear strike to the vehicle that results in fuel leakage from a breach in the fuel system and, potentially, a rapidly spreading fire that results in fatalities and injuries. As NHTSA noted in the NPRM, NASS estimates show that the majority of fatal and nonfatal occupant burn injuries in rear impact crashes were in the 34 to 48 km/h (21 to 30 mph) delta-v range. The agency believes that the offset rear impact test procedure specified in this final rule will simulate vehicle-to-vehicle crashes with a delta-v range of 32 to 48 km/h (20 to 30 mph).

The agency is also not adopting the recommendations of DC, GM, and Ford to specify design changes to the MDB and cart system. DC, GM, and Ford commented that, in their rear impact testing under the proposed test procedure, the MDB honeycomb appeared to bottom out. NHTSA, in the rear impact testing that it conducted in support of this rulemaking, took detailed post-crash test honeycomb crush measurements. None of the measurements indicated complete bottoming out of the honeycomb, and only a few of the measurements indicated about 85 percent compression.

Honeycomb, by design, is limited to approximately 85 percent compression, at which point it begins to stiffen considerably until it becomes infinitely stiff at 90-95 percent compression. During the 85-90 percent compression phase, it is similar to vehicle structures that become progressively stiffer as the crush in a crash increases. The measurements that were at 85 percent compression were observed near the edges of the MDB face, and since the total area was miniscule compared to the overall block of honeycomb, there will be little or no effect on the total or local forces exerted. Therefore, the energy absorbing honeycomb element has fully served its function of spreading the loads to the soft and hard structures of the vehicle and dissipating its share of the crash energy by the time that nearly full compression occurs. Accordingly, the agency believes that bottoming out of the honeycomb is not a concern.

DC, GM, and Ford also commented that, in their rear impact testing, the uprights supporting the cart face inadvertently contacted the struck vehicle. None of the commenters provided details on specific tests. However, the agency observed such contact in several of its rear impact tests. The NHTSA tests were conducted with the Standard No. 214 barrier, which has uprights that extend approximately 100 mm (4 inches) above the backing plate. The agency conducted film analysis of its tests and found there was no contact between the uprights and any significant vehicle structural components. The only vehicle components that contacted the uprights were trunks or tailgates that were already deformed. These contacts came late in the crash event and did not influence the outcomes.

The agency also notes that GM conducted several rear impact crash tests with a non-Standard No. 214 barrier. The cart used by GM had uprights extending approximately 600 mm (24 inches) above the backing plate, or 20 inches taller than the uprights on the barrier used by NHTSA. Despite this significant difference, there was no difference in the GM and NHTSA test results. Accordingly, the agency believes that contact between the cart uprights and the struck vehicle is not a concern.

GM noted that in some of its tests the barrier face underrode the struck vehicle and, upon rebound, the upright that contacted the vehicle became “caught” on vehicle structure ( e.g. , bumper, frame cross member, etc. ), with undetermined effects on the struck vehicle. Ford stated that, in some of its tests, right angle corners of the barrier face hung up on vehicle trim, potentially affecting test repeatability.

NHTSA did not observe either of these phenomena in any of its testing. The agency notes that the top edge of the deformable element of the barrier is 31 inches above the ground. Consequently, for the barrier face to underride the struck vehicle, the rear end of the vehicle would have to be lifted approximately 20 to 24 inches off the ground. The agency believes that such lifting is highly unlikely. Moreover, the agency believes that any possible effects from the phenomena observed by GM and Ford would be secondary since they occur after the maximum crush damage of the test. The agency notes that damage to the fuel systems tested by NHTSA and GM appeared to result from crush damage rather than from any secondary damage. Accordingly, the agency believes that the points raised by GM and Ford are not of concern.

NHTSA is not adopting VW's suggestion to not lower the barrier face by 50 mm (2 inches) to simulate pre-crash braking. NHTSA has determined that this change will have no measurable effect on the performance of the barrier. 23 The agency's tests indicate that the center of gravity of the barrier will drop about 7.4 mm (0.29 inches), which is well within the 25.4 mm (1 inch) allowed tolerance for center of gravity locations. The moment of inertia of the barrier about the longitudinal (roll) and transverse (pitch) axes will be reduced 0.1 percent and 0.02 percent, respectively, and there will be no change in the vertical (yaw) axis. The agency notes that the device currently used to measure these parameters is not capable of measuring such small changes in the moment of inertia. Moreover, these small changes will not produce any measurable effect on the test results.

The agency is not adopting the recommendation of Advocates, IIHS, and AAD to specify the use of a heavier (4,000 pound) barrier because, as the agency noted in the NPRM, in an 80 km/h (50 mph) rear impact offset crash test, a 3,015-pound barrier effectively reproduces the damage profile seen in real world crashes that most often lead to fires. If a heavier barrier were used, the proposed rear impact crash test would no longer reproduce that profile. In addition, the agency has conducted its crash tests in support of this rulemaking with a 3,015-pound barrier. The agency would have to conduct further research and development before a heavier barrier could be proposed for use in any test procedure. 24

Honda claimed that the MDB overrode the rear of the test vehicle but was not specific about the vehicle test in which the override occurred. We presume that Honda may have examined the test film of a Honda Accord test conducted by GM under the GM C/K settlement agreement with NHTSA. While NHTSA personnel made suggestions and witnessed the testing, we did not have direct control over the conduct of the tests. The Standard No. 301 upgrade test protocol was not precisely followed, but was instead modified according to what GM believed to be a worst case. Two major exceptions to the Standard No. 301 upgrade protocol were the test speed and the barrier height. GM believed that testing near the Standard No. 214 height and at 85 km/h would provide a worst case scenario. In GM's test with the Honda Accord, there was indeed severe override, which we believe was due to the additional 2.5 inches in the height of the MDB face, and to a lesser degree the additional speed of the test.

VW also recommended that the proposed rear impact test be on the side of the vehicle where the filler pipe is located. Our test results indicated that fuel leakage is not dependent on the location of the filler pipe; rather, it is dependent on how the overall fuel system is protected against the impact. Therefore, we are not incorporating VW's suggestion and vehicles must comply when the rear impact test is conducted on either side of the vehicle.

Further, our cost study indicated that compliance with this final rule will not require major structural redesign (as stated by Alliance and DC), or necessitate an increase in vehicle stiffness (as stated by VW). Because there is no need to increase the vehicle stiffness, this final rule does not increase the potential for whiplash injuries in lower crashes as suggested by VW.

The agency is replacing Standard No. 301's current lateral crash test with the side impact crash test specified in Standard No. 214. The Standard No. 214 side impact crash test specifies that a stationary vehicle be struck on either side by a 1,368 kg (3,015 pound) MDB. As noted above, Standard No. 214 currently specifies an impact speed of 54 km/h. In order to provide an appropriate tolerance without affecting the stringency of the test, the agency proposed to change the test speed to 53 ± 1 km/h and adopt it for Standard No. 301. No comments addressed this issue, and we are adopting that proposal.

The agency is specifying that the MDB be lowered 50 mm (2 inches) for the rear impact test to simulate pre-braking. However, the agency is not specifying that the MDB be lowered for the side impact test. The test conditions of Standard No. 214 were intended to reflect a “worst case” scenario for occupants riding in the struck vehicle in that the striking vehicle was assumed not to be braking prior to impact. A braking vehicle would strike lower than a non-striking vehicle, potentially engaging more of the side sill of the struck vehicle. Full engagement of the sill dissipates the crush energy more effectively than engagement of the door structures located above the sill, resulting in les intrusion and deformation along the struck side where fuel system components ( e.g. , fuller filler neck and tube) are located. NHTSA believes the integrity of those fuel system components would be tested in a more severe environment if the barrier were not lowered. For these reasons, NHTSA has decided not to lower the MDB for the side impact test.

NHTSA believes that a post-crash door operability requirement could be a practicable, reasonable safety enhancement. However, the agency has decided not to add a post-crash door operability requirement to Standard No. 301 or Standard No. 206 in this rulemaking. The agency has not developed a practical, objective, and repeatable test procedure for testing door operability. The agency is specifically concerned with developing specifications for the type and magnitude of force needed to test door operability. The agency notes that none of the commenters who supported a door operability requirement suggested a test procedure.

Accordingly, NHTSA will need to conduct research before proposing any post-crash door operability requirement and will consider adding a post-crash door operability requirement to Standard No. 206 or Standard No. 301 in a separate rulemaking.

In the Preliminary Regulatory Evaluation for the NPRM, the agency said that most vehicles needing modification to meet the upgrade rear impact test would need only minor modifications and estimated that those modifications could be completed in 33 months. Based on that estimate, we provided a lead time of three years.

The Alliance said “significant vehicle redesign and retooling for production will likely be required in a number of vehicles.” It suggested “(t)he small number of tests conducted by the NHTSA, often with a sample size of one vehicle, simply is inadequate to identify whether vehicle changes are required or for any manufacturer to assure compliance for all its vehicles.” The Alliance suggested that the agency phase in the requirements, beginning not earlier than three years after the issuance of the final rule, according to the following annually increasing percentages of production: 25%, 40%, 70% and 100%.

In their comments on the NPRM, DC and Honda argued that some vehicles would need more than just minor modifications and that therefore additional lead time should be provided. Both suggested that the entire rear ends of some vehicles would have to be redesigned, although neither identified any specific models in need of such changes. Honda generally cited crash testing in support of its argument, but gave no details about that testing. DC suggested the same phase-in recommended by the Alliance. Honda suggested that the agency phase in the requirements, beginning not earlier than three years after the issuance of the final rule, according to the following percentages of production: 10%, 30%, 70% and 100%.

While the agency continues to believe that a three-year lead time is sufficient for most vehicles in need of modification, it agrees that it is desirable to provide additional lead time to accommodate any new models that were designed and developed based upon the current requirements. The agency recognizes that vehicle platforms, once developed, are typically used for a number of years without major structural modification. We also recognize that in order to meet the requirements of FMVSS No. 301, a vehicle, without modification, must meet the static roll over requirements following an impact in a barrier test. Consequently, we have decided that the upgraded rear impact test will be phased-in, beginning on September 1, 2006, according to the following percentages of production: 40%, 70% and 100%. We believe that this combination of lead time and phase-in will allow sufficient time for existing platforms to be redesigned to comply with all of the requirements of FMVSS No. 301, and that the four year phase-in proposed by the Alliance is not necessary.

We also believe that it is not necessary to allow an optional “0%, 0%, 100%” three-year phase-in for limited-line manufacturers as proposed by Porsche. A similar phase-in exception for limited line manufacturers is present for the advanced air bag requirements of Standard No. 208. However, the advanced technology requirements that compounded the disparity between the phase-in requirements of the Advanced Air Bag Rule for limited line manufacturers and more diverse manufacturers is not present here.

In the Preliminary Regulatory Evaluation for the NPRM, we said:

Some vehicle manufacturers supported the one-year lead time proposed in the NPRM for the side impact test upgrade, but recommended that the agency add a phase-in after this lead time. The Alliance asked for additional lead time for vehicles not previously subject to Standard No. 214, saying;

As we note below in the section on costs, only one out of more than 100 vehicles tested failed Standard No. 301's fuel leakage requirements using Standard No. 214's side impact test. Based on those test results, the agency believes that few vehicles, approximately 1%, will have to be modified to meet Standard No. 301's leakage requirements using Standard No. 214's side impact test. Therefore, the one-year lead time without a phase-in is adopted, as was proposed.

The target population of crashes includes multi-vehicle crashes in which a passenger vehicle is struck in the rear by another passenger vehicle and the fire starts in the struck vehicle. There are an estimated 58 burn-related fatalities and 119 non-fatal burn-related injuries annually in the target population. The non-fatal burn injuries in that population of crashes were mostly minor and were typically not the most severe injury to the occupant. The agency estimates that approximately 8 to 21 fatalities will be prevented once all vehicles on the road comply with the upgraded rear impact test. The cost per life saved is estimated to be $1.96 million to $5.13 million ($41 million/21 lives to $41 million/8 lives). The agency is not estimating the number of reduced non-fatal burn-related injuries because there are only a few cases each year in which the injured person's most serious injury was a burn injury.

There are fewer than 100 fatalities annually in multi-vehicle side impacts that result in fire. The agency believes that the Standard No. 214 side impact test is somewhat stricter than the existing lateral impact test in Standard No. 301. However, the agency was unable to quantify any benefits from switching to the Standard No. 214 side impact test.

NHTSA disagrees with the VW comment that the benefits of this rulemaking are too low compared to its costs. VW did not provide any data to support their comment. However, the agency believes that VW's cost estimates may be based on costs of issues, such as post-crash door operability, seat back failures, and dummy responses, which were discussed in the NPRM but not adopted in this final rule.

The agency estimates that the average cost for vehicles that will need to be modified to comply with the upgraded rear impact test is $5.31 per vehicle. 25 Based on its belief that the test failures in the agency's testing were more the result of design differences than vehicle weight differences, the agency estimates that 46 percent of the vehicle fleet does not currently meet the upgraded rear impact test. It further estimates that approximately 16.7 million vehicles are sold each year in the U.S. Together, this information indicates that the total cost for the fleet will be approximately $41 million per year.