On September 16, 2004, the NRC published in the Federal Register a proposed rule that would amend 10 CFR part 110 pertaining to the export and import of nuclear material and equipment (69 FR 55785). The NRC is now issuing a final rule based on the comments received on the proposed rule. This final rule takes into account the results of the NRC's comprehensive review of nuclear and radioactive material security requirements in the post-September 11, 2001 environment and the resulting Orders issued to domestic licensees of the NRC and Agreement States under the Commission's authority under the Atomic Energy Act of 1954, as amended (AEA), to assure the common defense and security. The Orders are separate from this rulemaking and remain in effect for domestic shipments. The final rule codifies provisions in the International Atomic Energy Agency (IAEA) Code of Conduct on the Safety and Security of Radioactive Sources (Code of Conduct) for the import and export of radioactive material, and the supplemental IAEA Guidance on the Import and Export of Radioactive Sources (Guidance document). Paragraphs 23-29 of the Code of Conduct are intended to guide countries in the development and harmonization of policies and laws on certain exports and imports of radioactive sources, which if handled improperly, may pose a significant risk to individuals, society and the environment, to ensure that such sources are only exported to authorized end-users in countries with adequate regulatory controls, and that they are not diverted for illicit use. The U.S. and many other countries have politically committed to follow the Guidance contained in the Code of Conduct and Guidance document, which were each approved by the IAEA Board of Governors in 2003 and endorsed by the IAEA General Conference in 2004. The final rule also goes beyond the Code of Conduct and its Guidance document in the area of bulk material to reflect the post September 11, 2001 security policies of the Commission and the Executive Branch. Material in “bulk” or “loose” form raises security concerns that equal or exceed those for material in sealed sources.

The specific radioactive material and quantities that will be covered by this final rule are listed in Table 1 of the new Appendix P to part 110. Table 1 is essentially identical to the list of radioactive materials in Categories 1 and 2 in Annex 1, Table 1, of the Code of Conduct. The amendments to part 110 require NRC authorization of certain exports and imports by specific license of radioactive material at the Category 2 level and above of the IAEA Code of Conduct and the Guidance document which may pose a significant risk to individuals, society and the environment if handled improperly. Exports and imports of these radioactive materials will take place with prior notification to the NRC and the importing country authority. Exports of Category 1 quantities of such material will require the consent of the government of the importing country prior to shipment. 1 While prior notification of the importing government authority may originate from either the exporting licensee or exporting government authority, consent to the import of Category 1 material is to be provided on a government to government basis. The NRC will not issue a license for Category 1 exports prior to receiving consent from the importing government. In cases where the recipient does not have an authorization to possess the radioactive material and/or the importing country does not have the technical and administrative capability, resources, and regulatory structure needed to ensure that the radioactive source will be managed in a manner consistent with the provisions of the Code of Conduct, the NRC may, at its discretion, authorize an export of Category 1 and 2 radioactive material in cases of exceptional circumstances, as defined in § 110.2. Category 1 and 2 exports will not be permitted under exceptional circumstances unless the government of the importing state provides its consent to the United States Government for the import.

Although the provision for “exceptional circumstances” in the Guidance document applies to both imports and exports, this final rule will only address such circumstances as they apply to exports. This is because the U.S. has the technical and administrative capability, resources and regulatory structure needed to ensure that radioactive sources will be managed in the United States in a manner consistent with the provisions of the Code of Conduct, and to ensure that the domestic recipient is authorized to receive and possess the source under U.S. national law.

With the exception of plutonium, the radioactive materials listed in Appendix P, Table 1, are categorized as byproduct material as defined in the AEA. Although radium-226 is encompassed by the Code of Conduct, it is not listed in Appendix P, Table 1, or covered by the scope of this final rule because, as a naturally occurring radioactive material, under the AEA, it is not under the jurisdiction of the NRC. The Department of Commerce regulates the export of radium-226. The NRC is seeking legislation from Congress that will confer upon it licensing jurisdiction over discrete sources of radium-226. Should that legislation be enacted, the NRC will amend its export and import regulations in a manner consistent with the Code.

It should be noted that yttrium-90 has been added to Appendix P, Table 1, as a decay product of strontium-90, consistent with Annex 1, Table 1 of the Code of Conduct. Also, the final rule makes clear that the threshold amounts in Table 1 are specified by terabequerels (TBq). Curie values are provided by NRC for informational purposes only, since the values have been rounded after conversion. Any conversion to the curie must still meet the TBq limit. Appendix P also prescribes the methodology, “sum of fractions,” to be used for calculating the shipment of bulk material and/or multiple radionuclides. This methodology is used in 10 CFR part 71, Appendix A, for calculating the transport of multiple radionuclides. The requirements described in this final rule apply to all identified licensees, both NRC and Agreement State.

Consistent with the scope of part 110, this rule does not apply to the Departments of Defense and Energy for activities authorized by sections 54, 64, 82 and 91 of the AEA, except when the Department of Energy seeks an export license under section 111 of the AEA (see § 110.1(b)(1)). In addition, paragraph F.5 of the Guidance document notes that “States should construe this non-legally binding Guidance in accordance with activities furthering non-proliferation, nuclear security, and the avoidance of malicious acts using radioactive sources.”

Exports. Under the AEA and 10 CFR part 110, the principal criterion for approving exports of the materials listed in Appendix P is a finding that the export is not inimical to the common defense and security of the United States. The non-inimicality finding is relevant to both the nuclear proliferation significance of exports and the related security concerns about radioactive material falling into the hands of non-country organizations, including terrorist groups. In making its inimicality determination, the Commission will, under the rule and consistent with the Guidance document, and in consultation with the Executive Branch, consider whether the importing country has the technical and administrative capability and the resources and regulatory structure to manage the radioactive material in a safe and secure manner, and has authorized the recipient to receive and possess this material. For proposed exports of Category 1 amounts of radioactive material listed in Appendix P, the Commission will also assess whether the government of the importing country has provided its consent to the import. For both Category 1 and Category 2 exports, the Commission will require the applicant for the export license to provide the NRC with pertinent documentation demonstrating that the recipient of the radioactive material has the necessary authorization under the laws and regulations of the importing country to receive and possess the material.

The Code of Conduct and the Guidance document provide for exports and imports in situations where a potential recipient lacks the necessary authorization to receive and possess the radioactive material, or where a receiving country is lacking in technical and administrative capability, resources, or regulatory structure, under “exceptional circumstances.” The Commission has considered that guidance in preparation of this final rule, and therefore will consider as part of its overall inimicality determination whether the export qualifies as an “exceptional circumstance.” In such a case, the Commission will also consider whether the government of the importing country has provided its consent to the import of Category 1 or Category 2 amounts of radioactive material.

In examining these and other factors that may be pertinent to assessing whether the proposed export will be inimical to the U.S. common defense and security, the Commission will, as appropriate, seek the advice of the Executive Branch and will take into account information it receives as part of regular interactions with its foreign regulatory counterparts, the IAEA, and the Executive Branch. If, after considering the above information, the Commission authorizes the export, then export licensees will be required to provide prior notification of individual shipments to the importing country authority and to the NRC.

Imports. For imports, the licensing criteria are non-inimicality to the U.S. common defense and security and a finding that the import does not constitute an unreasonable risk to the public health and safety. The final rule incorporates the Guidance document's criteria for making these determinations. Since all recipients in the U.S. must be properly authorized by the NRC, an Agreement State, or the Department of Energy to receive and possess such radioactive material, import licenses under NRC's licensing authority of radioactive material will simply require that the recipient licensee provide (1) a copy of its authorization to the exporter or exporting country authority (or alternatively that the NRC confirm to the exporting country's authority that the U.S. recipient is authorized to receive and possess the radioactive material), (2) prior notification to the NRC of individual shipments, and (3) pertinent documentation to the NRC that each recipient of the radioactive material has the necessary authorization to possess this material. For proposed imports into the U.S. of Category 1 amounts of radioactive material, specified in Appendix P to Part 110, the Commission will be responsible for providing the necessary formal U.S. Government consent to the export authority of the exporting country.

Flexibility. The Commission will evaluate each license application on a case-by-case basis, but may exercise some discretion on whether a license may cover multiple shipments. For example, the Commission may wish to limit exports made to new recipients or to a country/destination with limited experience with its regulatory infrastructure to single shipments of radioactive material. On the other hand, for countries with mature regulatory infrastructures with known and competent recipients, the Commission intends to use the provisions of § 110.31(e) to issue broad specific export and import licenses for multiple radionuclides, shipments, and destinations and with authorizations valid for multiple years. The duration of the import or export authorization will be consistent with the expiration date of the recipient's authorization to receive and possess the radioactive material. In all cases, each shipment will require prior notification as discussed previously.

On October 19, 2004, the staff held a public meeting at NRC to answer questions and address concerns about the proposed rule and how it would be implemented. A summary of the October 2004 public meeting and a list of questions and answers prepared by the NRC staff for discussion at the public meeting, are available on the NRC's rulemaking Web site at http://ruleforum.llnl.gov (ADAMS accession nos. ML043020582 and ML042930012, respectively). Another public meeting was held on February 16, 2005.

Written comments on the proposed rule were due to the NRC by November 30, 2004. The Commission received eighteen letters from the public commenting on the proposed rule. In general, the comments received related either to the scope of the rule or the effect of its implementation on licensees, from the potential for disruption of supply to the cost of fees required to obtain the new licenses that would be required.

Comment: With regard to comments on the scope of the proposed rule, several private individuals indicated that it is not broad enough because it does not address radiological safety or fully address security concerns due to the basic international decision to limit government imposed controls to exports and imports of Category 1 and 2 material, leaving Category 3 material uncontrolled.

For Category 3 material, comments suggested that the Commission should do three things: (1) Modify the current general export license by requiring the exporter to notify the NRC in advance of each shipment, (2) require that all exports under the general license be to specific end-users whose bona fides have been verified, and (3) differentiate among Category 3 exports by establishing subcategories of specific concern and authorizing exports under the general license to a limited number of countries.

Commenters also indicated that the final rule should require shipments of radioactive sources, and the devices containing them, to comply with standards for radiation safety and when applicable, for patient safety, prior to export. It should also require date and confirmation of receipt by the intended recipients of the radioactive sources scheduled for export, in order to complete the security linkage governing transfers.

NRC Response: While it is conceivable that additional security measures for Category 3 material are possible in the future, an attempt to achieve such enhanced controls would extensively delay the implementation of the final rule. At this time, there is no international export/import guidance relating to Category 3 sources. This issue was discussed at length during the meetings sponsored by the IAEA which led to the adoption of the Code of Conduct and the Guidance document. Balancing security and the need to provide a reliable and commercially viable radioactive source industry, the involved countries decided to limit internationally harmonized export/import controls to Category 1 and 2 sources. In so doing, the involved countries recognized the need for proper security for Category 3 sources, but concluded that such security measures could be adequately addressed by a combination of domestic safety/security regulatory oversight and by recognizing the overall competence of the radioactive source industry. Providing additional government authority over such material, without clear indications of wider government and industry support for such measures, would likely be counterproductive and harm the larger public interest by impeding international commerce in the use of Category 3 sources.

Confirmation of receipt by the intended recipients of the radioactive sources scheduled for export, in order to complete the security linkage governing transfers, is required in the recipient's certification to the licensee.

Comment: Several comments from industry indicated that the scope of the proposed rule should be relaxed for certain exports and imports being placed under specific license requirements to avoid potential supply disruptions. One commenter requested that exports of smoke detectors containing less than one microcurie of americium-241 be exempted from Part 110 licensing, and if this is not possible that it be exempted from specific license and the reporting requirements as listed in § 110.23(b). Several commenters requested that instead of requiring a specific license, that the following be allowed under general license: exports and imports of americium-241 and AmBe contained in industrial process control equipment or petroleum exploration equipment, to any country not listed in § 110.28 (embargoed destinations); the return or import of used sources to the U.S. exporter; the use of end-user statements instead of specific licenses; and the use by exporters/shippers of local quality assurance procedures to validate the legitimacy of the end user using standard business practices in accordance with already existing Customs requirements. Commenters suggested that, for Category 2 shipments, the regulations should allow e-mail notifications to NRC at the time of shipment, currently done under the Commission's Orders; and for Category 2 exports, the owner or licensee should be able to determine if the foreign recipient is properly authorized to receive material which is authorized by the Code of Conduct Guidance. Finally, it was suggested that the IAEA standard should be used for verifying suitability of an importing country instead of redundant assessments by multiple countries. In connection with this, the NRC should provide a list of countries which meet the suitability requirements.

NRC Response: While NRC is not excluding such byproduct material from Part 110 coverage, essentially all such exports are covered by the general licenses in § 110.23(a). Also, the reporting requirement for americium-241 in § 110.23(b) must remain due to a commitment among the U.S. Government and the governments of the United Kingdom, France, the Russian Federation and Japan to exchange annual reports of americium-241 and neptunium-237 as alternate nuclear materials.”

With regard to comments that favored the control of Category 2 shipments under the general license in § 110.23(a), the Commission has determined that its security policy for the export and import of Appendix P radioactive material will require specific export and import licenses, including Category 2 shipments.

In response to the Commission's requirement of export and import licenses, and the public's view that they will cause supply disruptions, NRC will employ a series of steps to prevent this scenario from developing. First, the NRC will issue specific licenses that are carefully crafted and contain appropriate conditions. Second, licenses can be issued for broad periods of time to multiple destinations. Third, staff resources in the Office of International Programs that were used in the development of this rule will be devoted to implementing it and reviewing the export and import license applications so that licenses can be issued on a timely basis. Fourth, to the extent possible, the NRC and Executive Branch will consider information from the importing countries, the IAEA, and other sources when deciding on whether to license an export to an importing country. Because there is no single set of criteria to determine whether an importing country has adequate regulatory controls, this assessment in most cases will rely on multiple sources of information. In that regard, the Commission plans to (1) initiate contacts with NRC's foreign regulatory counterparts in key countries in an effort to obtain information on their capabilities in handling Appendix P radioactive material, and (2) obtain any publicly available information from the IAEA. Fifth, during the early stages of rule implementation, the Commission will rely on its authority to issue specific export licenses under the “exceptional circumstances” clause (as reflected in § 110.42(e)(3)), where appropriate, in order to avoid serious supply disruptions while at the same time being mindful of security concerns.

Comment: Several commenters indicated that the scope of the NRC proposed rule does not conform to the Code of Conduct because (1) it includes bulk material; (2) the threshold value or regulatory standard needs to be in metric units, or U.S. shipments will exceed international standards; (3) it requires a specific license instead of an authorization; and (4) the notification requirement is 10 days instead of 7. Other commenters were concerned as to the conformance of the export/import rule with domestic transportation regulations.

NRC Response: The Commission believes that shipments of bulk material need to be within the scope of this rule in the new security environment. While international guidance does not as yet cover such exports or imports, NRC does not anticipate any difficulty in the timely processing of such export or import requests since they are less frequent (compared to radioactive source exports and imports) and each request can be handled on a case-by-case basis with appropriate interaction between NRC, the importing country and the importing facility owner or licensee.

With regard to the regulatory standard, the final rule makes it clear that the threshold amounts in Table 1 of Appendix P are specified in the International System (SI) of weights and measures of TBq. Any conversion to curies must meet the SI or TBq limit. Therefore, curies cannot be rounded up if they violate that limit. Also, the 10-day prior notification period in the proposed rule in § 110.50(b)(4), is being changed to 7 days in the final rule, in conformance with the Guidance document. With regard to possible conflicts in the domestic transport of radioactive materials, NRC is closely monitoring requirements in the transportation area to ensure that there is no conflict. Conversely, any security-related enhancements in the domestic area may impact the Commission's export/import regulations, not only as they pertain to Appendix P material, but also with respect to the NRC's standard provisions for handling other exports (such as source and special nuclear material). The NRC is working with other agencies and the international community to address the issue of possible discrepancies between this rule and any future transportation standards.

Comment: Several comments concerned the potential cost of the many export and import licenses that would be required, and the cost of disrupting supply and commerce. Several commenters indicated that the NRC license fees are high and will drive some small companies out of business, because the fee and/or amendment request could prove more expensive than the source itself. They noted the lack of relief for small business entities. Additionally, commenters expressed concern that it would be necessary to apply for many NRC specific licenses for each foreign end user. A globally harmonized approach is needed to ensure a level playing field for commerce. Commenters argued that for radiography and oil well logging, particularly for producers and shippers of americium-241, AmBe, and iridium-192, a delay in receiving the source can jeopardize the project or critical safety inspections.

A number of comments pointed to the specific license requirements in the proposed rule, suggesting these would adversely affect commerce in the following ways. First, the commenters noted the estimated burden of 15 minutes per advance notification is inaccurate, and is expected to take 30 minutes or more. Second, the commenters noted the requirement to list all foreign end users on each export license application, if required for each new foreign customer, would exceed NRC's domestic licensing regulations. Third, the commenters noted that new rule will require a potentially large number of licenses that will be required by the proposed rule, e.g. , if a new license is required for each foreign end-user. Fourth, the commenters noted that there is a possible three- to four-month time period required to process each application which already exists with current part 110 procedures. Fifth, the commenters noted that there is uncertainty over whether a U.S. company doing business in another country will require a specific license that has been issued by the other country. Sixth, some countries issue import permits for each shipment, which could complicate the process of issuing the related NRC export license. Seventh, some countries may not be able to receive shipments from the U.S. because in that country the material is not regulated or there is no regulatory authority to implement the Code of Conduct.

NRC Response: To alleviate some of the concerns about the costs of this rule, the Commission intends to issue broad specific licenses which will allow spreading the licensing fees over several shipments. With regard to the burden estimate for submitting advance notifications to the NRC prior to shipment, comments received from industry during the Public Meeting of October 19, 2004, indicated that the estimated 15 minutes per advance notification will take closer to 30 minutes each. Therefore, in the final rule, the estimated burden for each advance notification to the NRC by the licensee is being changed to 30 minutes. In § 110.50 paragraph (b)(4) of the proposed rule, advance notifications were due to the NRC at least 24 hours in advance of each shipment, and to the extent practical, 10 days in advance of each shipment, consistent with comments received by the Commission in the development of the Commission Additional Security Measures (ASMs). In the final rule, “to the extent practical” has been adjusted downward to 7 days for consistency with the Guidance document. Hence, although the final rule requires at least 24-hours advance notification prior to shipment, such notifications under § 110.50(b)(4) are expected within 7 days, “to the extent practical.” Further, the U.S. is actively encouraging other countries to follow the Code of Conduct and Guidance document to harmonize import and export procedures. The NRC has the discretion to consider exceptional circumstances, defined in § 110.2, if a country does not have the regulatory structure needed to ensure that radioactive sources will be managed in a manner consistent with the Code of Conduct.

Comment: Several individuals indicated that the six-month implementation period is not long enough to provide adequate time for the U.S. and other governments to ensure that all end users are properly qualified and licensed to receive and possess the material. The commenters also pointed out that part 110 does not indicate what penalties are to be used to punish those countries which choose to violate NRC's regulations.

NRC Response: NRC expects that the majority of new licenses required by the rule will be issued within the six-month period following its publication in the Federal Register , particularly to those entities in countries with known, competent nuclear regulatory systems. To address the issue of countries and/or end users that may have difficulty in meeting all the new requirements, the Commission can rely on certain “exceptional circumstances,” where present, as the basis for issuing export licenses.

The penalties to be applied for violating NRC's export/import regulations are addressed in part 110, subpart F. The U.S. is actively encouraging other countries to follow the guidance in the Code of Conduct and Guidance document. It is to the advantage of all suppliers that the export and import procedures be applied in a harmonized manner to avoid undercutting and to help ensure a level playing field.

Section 110.2. A definition of “exceptional circumstances” consistent with the Code of Conduct and Guidance document is being added to the final rule. Also, the definition of “specific activity” is being revised in the final rule to reflect the TBq SI unit as the regulatory standard. This will make part 110 consistent with the Commission's 1996 metrication policy. Any conversion to curies must not exceed the TBq limit. New sources to be exported or imported under the general license will have to conform to the TBq limits by the time the final rule is implemented.

Subpart C—Licenses. The final rule requires specific licenses for all exports and imports of radioactive material listed in Table 1 of the new Appendix P to part 110, if the shipment amounts meet or exceed those listed.

Section 110.21. In paragraph (a)(4), the curie value is replaced by the SI unit of TBq to make § 110.21 consistent with the SI units used in Appendix P.

Section 110.22. In paragraph (a)(3), the curie value is replaced by the SI unit of TBq to make § 110.22 consistent with the SI units used in Appendix P.

Section 110.23. In paragraphs (a)(2), (3), (5), and (6) of this section, the curie and gram values are replaced by TBq to make these paragraphs consistent with the SI units used in Appendix P. In paragraph (a)(2), a sentence is added to indicate that individual shipments must be less than the TBq values specified in Category 2 of Appendix P to this part. In paragraph (a)(3), a sentence is added to require that individual shipments be less than the TBq values specified in Category 2 of Appendix P to this part. Paragraphs (a)(3) and (7) of the proposed rule are not being adopted. Proposed paragraph (a)(3) contained a drafting error which conflicts with the Nuclear Suppliers Group (NSG) Part 2 controls for certain alpha-emitting radionuclides. Proposed paragraph (a)(7) is no longer necessary because the sentences being added to paragraphs (a)(2) and (3) contain the relevant information.

Section 110.27. Paragraph (a) is revised to include a reference to the new paragraph (f) in this section. A new paragraph (f) is inserted that requires that individual import shipments of radioactive material listed in the new Appendix P to part 110 and conducted under the general license provisions of § 110.27(a) be below the amounts for Category 2.

Section 110.32. In paragraph (f)(1), the curie value is replaced with TBq to make this paragraph consistent with the SI units used in Appendix P. A new paragraph (g) describing the documentation that must accompany an import application for radioactive material listed in the new Appendix P is added. Also, a new paragraph (h) describing the documentation that must accompany an export license application for radioactive material listed in the new Appendix P is added.

Subpart D—Review of License Applications. Licensing criteria for radioactive material exports and imports, listed in Appendix P, are being added to this subpart.

Section 110.40. In paragraph (b)(6)(iv), the curie value is replaced with TBq to make this paragraph consistent with the SI units used in Appendix P.

Section 110.41. In paragraph (a)(3), the curie value is replaced with TBq to make this paragraph consistent with the SI units used in Appendix P.

Section 110.42. New paragraph (e) is added to specify the licensing criteria for the export of Category 1 and 2 shipments of radioactive material listed in the new Appendix P.

Section 110.43. New paragraphs (e) and (f) specify the licensing criteria for the import of radioactive material listed in the new Appendix P in amounts indicated for Categories 1 and 2.

Section 110.45. A new paragraph (b)(5) describes the requirements for issuing import licenses for the radioactive material listed in the new Appendix P in amounts specified in Categories 1 and 2. Also, the final rule renumbers paragraphs (c) and (d) as paragraphs (d) and (e) and adds a new paragraph (c) that describes the appropriate steps that the U.S. Government will take to inform the exporting country that the recipient is authorized to receive and possess the source or sources to be exported.

Section 110.50. In accordance with the proposed rule, existing paragraph (a)(3) had the word “transport” added after the word “use.” Existing paragraphs (b)(4) and (b)(5) are redesignated as paragraphs (b)(5) and (b)(6) and a new paragraph (b)(4) is added to specify the advance notification requirements for the licensee exporting or importing material listed in Appendix P. Paragraph (b)(4) in the final rule differs from the proposed rule language in the following respects: (1) It is revised to indicate that a list of points of contact in the importing countries will be made available on the NRC Office of International Programs external Web site http//:www.nrc.gov ; (2) it is revised to indicate that the point of contact for receiving advance notifications for all export and import shipments is the NRC Operations Center and that relevant contact information will be provided on each export and import license; and (3) the requirement for advance notification of shipment within 10 days “to the extent practical” is changed to require notification within 7 days “to the extent practical,” to conform with the Guidance document. Paragraph (a)(3) is revised to make it clear that transport within the United States of radioactive material is not authorized by a general or specific export or import license issued under part 110. Redesignated paragraph (b)(5) is revised to clarify that part 110 licensees must comply with the NRC's domestic regulations covering transportation in 10 CFR part 71. Also, a new paragraph (b)(7) is added to indicate that advance notifications containing information on shipment dates for the quantities of the radionuclides in Appendix P should be controlled as sensitive, unclassified information.

Appendix P to Part 110. The new Appendix P lists the radioactive material and the quantities requiring specific licenses. A new footnote added to Table 1 of Appendix P in the final rule states that the threshold values are specified in TBq, the regulatory standard consistent with the Code of Conduct. The curie value is given in parentheses only for information purposes and has been rounded after conversion from the TBq value. This change is necessary for two reasons. First, it will ensure the consistency of these regulations with the Code of Conduct and will facilitate advance shipment notifications to other competent government regulatory authorities which use the SI unit of TBq, not curies. Second, as was noted by a licensee during the Public Meeting of October 19, 2004, purchasers of sealed sources are, in some cases, already ordering the sources to be sized at just under the perceived Category 2 limit. For example, ordering a sealed source containing 19.75 curies of Am-241, just under the “20 curie” limit will result in a violation of the SI limit because a precise conversion of the 0.6 TBq Category 2 limit for Am-241 equates to a 16.2 curie limit. Therefore, a lack of clarity in the regulatory standard would impede licensees' planning to coordinate their operational and investment plans with these regulations. In order to minimize the potential for conversion mistakes, the final rule differs from the proposed rule and the Code of Conduct in that the curie values in Appendix P have been rounded to two significant figures instead of one.

In the final rule, Appendix P, Table 1, also includes Y-90, a decay product of the radionuclide, Sr-90, to maintain consistency with the Code of Conduct. A new footnote has been added to prescribe the methodology “sum of the fractions” for calculating effective quantities for combinations of radionuclides being transported together. The proposed rule did not contain any provisions on threshold limits for import and export shipments of multiple sealed sources or bulk material of the same radionuclide or multiple radionuclides. A “sum of fractions” methodology, already used by the NRC in 10 CFR part 71, Appendix A, when evaluating the transportation limits of combination shipments of radionuclides, is included in Appendix P and is to be used for calculating shipments of bulk material and multiple sources and/or radionuclides.

Regulatory authority over the export and import of sources of concern is reserved to NRC under the AEA. Therefore, under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs,” approved by the Commission on June 30, 1997, and published September 3, 1997 (62 FR 46517), the rules being adopted are classified as compatibility Category “NRC.” Agreement States should not adopt equivalent rules.

The National Technology Transfer Act of 1995, Pub. L. 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. There are no voluntary consensus standards addressing this subject matter.

The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22 (c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.

This final rule amends information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). These requirements were approved by the Office of Management and Budget (OMB), approval numbers 3150-0036 and 3150-0027.

The burden to the public for these information collections is estimated to average 2.4 hours per application, 30 minutes per licensee advance notification to the NRC, and 15 minutes per recipient's certification to the licensee, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection. Send comments on any aspect of these proposed information collections, including suggestions for reducing the burden, to the Records and FOIA/Privacy Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to INFOCOLLECTS@nrc.gov ; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202 (3150-0036 and 3150-0027), Office of Management and Budget, Washington, DC 20503.

If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

The Commission has prepared a regulatory analysis for this final rule. The analysis examines the cost and benefits of the alternatives considered by the Commission. The regulatory analysis is available in ADAMS (Accession No. ML051430150) and on the NRC's rulemaking Web site at http://ruleforum.llnl.gov . See also the discussion under Regulatory Flexibility Certification.

This rule is necessary to reflect the nuclear and radioactive material security policies of the Executive Branch and to comply with international agreements and guidance to which the U.S. Government subscribes. On the basis of information available to the Commission, the final rule will not have a significant economic impact on a substantial number of small entities.

The NRC has determined that a backfit analysis is not required for this rule because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR chapter I.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.

The FAA has determined that notice and opportunity for prior public comment is impractical because these procedures would significantly delay issuance of approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views or arguments, as they may desire. Communications should identify the regulatory docket or special condition number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to CE223.” The postcard will be date stamped and returned to the commenter.

On September 24, 2004, Cirrus Design Corporation requested a Type Design Project, for the installation of an AMSAFE four-point safety belt restraint system incorporating an inflatable airbag for the pilot and co-pilot seats of the Cirrus Design Corporation model SR20 and SR22 airplanes. The Cirrus models SR20 and SR22 are single engine, four-place airplanes.

The inflatable restraint system is four-point safety belt restraint system consisting of a lap belt and dual shoulder harnesses. An inflatable airbag is attached to one of the shoulder harnesses, and the other shoulder harness is of conventional construction. The inflatable portion of the restraint system will rely on sensors to electronically activate the inflator for deployment. The inflatable restraint system will be installed on both the pilot and co-pilot seats.

In the event of an emergency landing, the airbag will inflate and provide a protective cushion between the occupant's head and structure within the airplane. This will reduce the potential for head and torso injury. The inflatable restraint behaves in a manner that is similar to an automotive airbag, but in this case, the airbag is integrated into one of the shoulder harnesses. While airbags and inflatable restraints are standard in the automotive industry, the use of an inflatable four-point restraint system is novel for general aviation operations.

The FAA has determined that this project will be accomplished on the basis of providing the same current level of safety of the Cirrus Design Corporation Models SR20 and SR22 occupant restraint systems. The FAA has two primary safety concerns with the installation of airbags or inflatable restraints:

• That they perform properly under foreseeable operating conditions; and

• That they do not perform in a manner or at such times as to impede the pilot's ability to maintain control of the airplane or constitute a hazard to the airplane or occupants.

The latter point has the potential to be the more rigorous of the requirements. An unexpected deployment while conducting the takeoff or landing phases of flight may result in an unsafe condition. The unexpected deployment may either startle the pilot, or generate a force sufficient to cause a sudden movement of the control yoke. Either action could result in a loss of control of the airplane, the consequences of which are magnified due to the low operating altitudes during these phases of flight. The FAA has considered this when establishing these special conditions.

The inflatable restraint system relies on sensors to electronically activate the inflator for deployment. These sensors could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of an inadvertent deployment must be considered in establishing the reliability of the system. Cirrus Design Corporation must show that the effects of an inadvertent deployment in flight are not a hazard to the airplane or that an inadvertent deployment is extremely improbable. In addition, general aviation aircraft are susceptible to a large amount of cumulative wear and tear on a restraint system. It is likely that the potential for inadvertent deployment increases as a result of this cumulative damage. Therefore, the impact of wear and tear on inadvertent deployment must be considered. Due to the effects of this cumulative damage, a life limit must be established for the appropriate system components in the restraint system design.

There are additional factors to be considered to minimize the chances of inadvertent deployment. General aviation airplanes are exposed to a unique operating environment, since the same airplane may be used by both experienced and student pilots. The effect of this environment on inadvertent deployment must be understood. Therefore, qualification testing of the firing hardware/software must consider the following:

• The airplane vibration levels appropriate for a general aviation airplane; and

• The inertial loads that result from typical flight or ground maneuvers, including gusts and hard landings.

Any tendency for the firing mechanism to activate as a result of these loads or acceleration levels is unacceptable.

Other influences on inadvertent deployment include high intensity electromagnetic fields (HIRF) and lightning. Since the sensors that trigger deployment are electronic, they must be protected from the effects of these threats. To comply with HIRF and lightning requirements, the AMSAFE, Inc., inflatable restraint system is considered a critical system, since its inadvertent deployment could have a hazardous effect on the airplane.

Given the level of safety of the current Cirrus Design Corporation SR20 and SR22 occupant restraints, the inflatable restraint system must show that it will offer an equivalent level of protection in the event of an emergency landing. In the event of an inadvertent deployment, the restraint must still be at least as strong as a Technical Standard Order approved belt and shoulder harnesses. There is no requirement for the inflatable portion of the restraint to offer protection during multiple impacts, where more than one impact would require protection.

The inflatable restraint system must deploy and provide protection for each occupant under a crash condition. The seats of the models SR20 and SR22 are certificated to the structural requirements of § 23.562. Therefore, the test crash pulses identified in § 23.562 must be used to satisfy this requirement.

It is possible a wide range of occupants will use the inflatable restraint. Thus, the protection offered by this restraint should be effective for occupants that range from the fifth percentile female to the ninety-fifth percentile male. Energy absorption must be performed in a consistent manner for this occupant range.

In support of this operational capability, there must be a means to verify the integrity of this system before each flight. As an option, AMSAFE, Inc., can establish inspection intervals where they have demonstrated the system to be reliable between these intervals.

It is possible that an inflatable restraint will be “armed” even though no occupant is using the seat. While there will be means to verify the integrity of the system before flight, it is also prudent to require that unoccupied seats with active restraints not constitute a hazard to any occupant. This will protect any individual performing maintenance inside the cockpit while the aircraft is on the ground. The restraint must also provide suitable visual warnings that would alert rescue personnel to the presence of an inflatable restraint system.

In addition, the design must prevent the inflatable seatbelt from being incorrectly buckled and/or installed such that the airbag would not properly deploy. As an alternative, Cirrus Design Corporation may show that such deployment is not hazardous to the occupant and will still provide the required protection.

The cabins of the Cirrus model airplanes identified in these special conditions are confined areas, and the FAA is concerned that noxious gasses may accumulate in the event of airbag deployment. When deployment does occur, either by design or inadvertently, there must not be a release of hazardous quantities of gas or particulate matter into the cockpit.

An inflatable restraint should not increase the risk already associated with fire. Therefore, the inflatable restraint should be protected from the effects of fire, so that an additional hazard is not created by, for example, a rupture of the inflator.

Finally, the airbag is likely to have a large volume displacement, and possibly impede the egress of an occupant. Since the bag deflates to absorb energy, it is likely that the inflatable restraint would be deflated at the time an occupant would attempt egress. However, it is appropriate to specify a time interval after which the inflatable restraint may not impede rapid egress. Ten seconds has been chosen as reasonable time. This time limit will offer a level of protection throughout the impact event.

Under the provisions of § 21.101, Cirrus Design Corporation, must show that the Cirrus models SR20 and SR22, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A00009CH or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference are as follows:

Cirrus SR20: Part 23 of the Federal Aviation Regulations dated February 1, 1965, as amended by 23-1 through 23-47 except as follows: FAR 23.573, 23.575, 23.611, 23.657, 23.673 through Amendment 23-48. FAR 23.783, 23.785, 23.867, 23.1303, 23.1307, 23.1309, 23.1311, 23.1321, 23.1323, 23.1329, 23.1361, 23.1383, 23.1401, 23.1431, 23.1435 through Amendment 23-49. FAR 23.3, 23.25, 23.143, 23.145, 23.155, 23.1325, 23.1521, 23.1543, 23.1555, 23.1559, 23.1567, 23.1583, 23.1585, 23.1589 through Amendment 23-50. FAR 23.777, 23.779, 23.901, 23.907, 23.955, 23.959, 23.963, 23.965, 23.973, 23.975, 23.1041, 23.1091, 23.1093, 23.1107, 23.1121, 23.1141, 23.1143, 23.1181, 23.1191, 23.1337 through Amendment 23-51. FAR 23.1305 through Amendment 23-52. FAR 36 dated December 1, 1969, as amended by current amendment as of the date of Type Certification.

Cirrus SR22: Part 23 of the Federal Aviation Regulations dated February 1, 1965, as amended by 23-1 through 23-53 except as follows: FAR 23.301 through Amendment 47. FAR 23.855, 23.1326, 23.1359, not applicable. FAR 36 dated December 1, 1969, as amended by current amendment as of the date of Type Certification.

For all the models listed above, the certification basis also includes all exemptions, if any; equivalent level of safety findings, if any; and special conditions not relevant to the special conditions adopted by this rulemaking action.

The Administrator has determined that the applicable airworthiness regulations ( i.e. , part 23 as amended) do not contain adequate or appropriate safety standards for the AMSAFE, Inc., inflatable restraint as installed on these Cirrus Design Corporation models because of a novel or unusual design feature. Therefore, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to that model under the provisions of § 21.101.

The Cirrus Design Corporation models SR20 and SR22 will incorporate the following novel or unusual design feature:

The AMSAFE, Inc., Four-Point Safety Belt Restraint System incorporating an inflatable airbag for the pilot and co-pilot seats. The purpose of the airbag is to reduce the potential for injury in the event of an accident. In a severe impact, an airbag will deploy from one shoulder harness, in a manner similar to an automotive airbag. The airbag will deploy between the head of the occupant and airplane interior structure. Therefore, this will provide some protection to the head of the occupant. The restraint will rely on sensors to electronically activate the inflator for deployment.

The Code of Federal Regulations state performance criteria for seats and restraints in an objective manner. However, none of these criteria are adequate to address the specific issues raised concerning inflatable restraints. Therefore, the FAA has determined that, in addition to the requirements of part 21 and part 23, special conditions are needed to address the installation of this inflatable restraint.

Accordingly, these special conditions are adopted for the Cirrus Design Corporation models equipped with the AMSAFE, Inc., four-point inflatable restraint. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil aviation authorities.

As discussed above, these special conditions are applicable to the Cirrus Design Corporation models SR20 and SR22 equipped with the AMSAFE, Inc., four-point inflatable restraint system. Should Cirrus Design Corporation, at a later date, request to modify any other model on the Type Certificate identified in these special conditions to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on the previously identified Cirrus models. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register ; however, the substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, and because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

On May 18, 2005, Airspace Docket No. 04-ANM-09 was published in the Federal Register (70 FR 28423), revising VOR Federal Airway 257 (V-257) in MT. In that rule, the airspace description was incomplete. This action corrects that error.

On Thursday, March 10, 2005, the FAA proposed to amend 14 CFR part 71 to modify Class E airspace at Muskegon, MI (70 FR 11886). The proposal was to modify controlled airspace extending upward from 700 feet or more above the surface of the earth to contain Instrument Flight Rules operations in controlled airspace during portions of the terminal operation and while transiting between the enroute and terminal environments.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 modifies Class E airspace at Muskegon, MI, to accommodate aircraft executing instrument flight procedures into and out of Grand Haven Memorial Airpark. The area will be depicted on appropriate aeronautical charts.

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

Section 105(e) of the Federal Alcohol Administration Act (the FAA Act, 27 U.S.C. 201 et seq. ) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity and prohibits the use of misleading information on such labels. The FAA Act also authorizes the Secretary of the Treasury to issue regulations to carry out its provisions. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers these regulations.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

TTB received a petition from Kevin Robinson of the Brassfield Estate Winery proposing a new viticultural area to be called “High Valley” in Lake County, California. Located above the eastern shore of Clear Lake near the village of Clearlake Oaks, about 85 miles north of San Francisco, the proposed 14,000-acre viticultural area has approximately 1,000 acres planted to vines.

The proposed High Valley viticultural area boundary encompasses the largely enclosed, elongated bowl-shaped High Valley basin and the surrounding mountain ridges. The area measures about 8.5 miles east-to-west and 3 miles north-to-south, with elevations between 1,600 and about 3,000 feet. Early viticultural efforts in the High Valley area ceased with Prohibition, and walnuts, prunes, green beans, and other crops became the area's popular agricultural commodities. Approximately 25 very old “centennial vines” (possibly zinfandel) still exist on the southeast ridge above the valley floor.

Below, we summarize the evidence presented in the petition.

“High Valley” is the officially recognized name of the elongated bowl-shaped valley encompassed by the proposed High Valley viticultural area, as shown on the Clearlake Oaks, California, USGS Quadrangle map and on the California State Automobile Association's “Mendocino and Sonoma Coast Region” map of February 1999. Both maps also show High Valley Ridge and High Valley Road within the proposed viticultural area's boundary. The petition states that “High Valley” is the popularly and historically recognized name for the valley. In addition, the 2002 SBC Pacific Bell Directory lists three local businesses that incorporate “High Valley” into their name, and “High Valley Memories,” a 1960 manuscript by Tom Butler describing the valley's history, is on file at the Lake County Historical Courthouse Museum.

High Valley is enclosed by surrounding mountain ridges, which topographically isolate High Valley from the surrounding region and form the valley's natural boundary. The proposed High Valley viticultural area boundary largely follows these surrounding ridges. The ridges surrounding High Valley create a mountainside grape-growing environment not found beyond the boundaries of the viticultural area. The majority of the High Valley area's vineyards are planted on these highland slopes, with the remainder on the western valley floor.

The floor of High Valley has a minimum elevation of 1,600 feet, which is higher than other nearby valleys and flats. Based on the relevant USGS maps, the table below shows the lower elevations found in the valleys and flats nearest to the proposed High Valley viticultural area.

High Valley is an elongated, bowl-shaped basin, which is largely enclosed and topographically isolated from surrounding regions by high surrounding mountain ridges. As shown on USGS maps, the valley floor is generally between 1,700 and 1,800 feet in elevation, while, to the north, High Valley Ridge rises to over 3,000 feet. To the east, south, and west, the surrounding ridges average between 2,200 and 2,400 in elevation. The lowest elevation within the High Valley viticultural area is at the 1,600-foot contour line, which forms part of the area's southern boundary.

The only drainage outlet from High Valley is Schindler Creek, which flows south through a gap in the mountain ridge between the valley and Clear Lake on the viticultural area's southern side. In addition to its topographic isolation, High Valley has an east and west orientation, which is rarely found in the northern California Coastal Ranges. This orientation contributes to some of the distinctive climatic features of the High Valley area.

The proposed High Valley viticultural area's climate is cooler than the surrounding viticultural areas of Lake County, according to weather station data collected from several locations within the High Valley viticultural area, including vineyards on the area's southeastern and western mountain ridges, and on the eastern and western portions of the valley floor. The Winkler degree-day heat summation method of climate classification classifies High Valley as a Region 3 climate and occasionally as a cooler Region 2, depending upon the year and a vineyard's location within the area. (Each degree of a day's mean temperature that is above 50 degrees F, which is the minimum temperature required for grapevine growth, is counted as one degree day; see “General Viticulture,” Albert J. Winkler, University of California Press, 1975.) Amber Knolls, a grape-growing region approximately 5 miles west of High Valley's boundary line, has consistently warmer growing season temperatures, and is frequently a Region 4 climate in the degree-day classification system.

High Valley's cool growing climate results from the valley's east-west orientation, the surrounding ridge topography, and the perpetual “wind machine” generated from the Clear Lake basin. The high east-west ridges above the valley trap the cooling afternoon breezes as they blow in from the Clear Lake basin. Also, the cooling mountain-valley winds from the higher northern elevations of the Mendocino National Forest drift down the ridges to the valley floor. The High Valley area is one of the coolest grape-growing regions in Lake County, with a frost season that frequently extends into June. The grape varietals planted in the High Valley area reflect this cooler and shorter growing season.

The petition noted the wide variation in annual precipitation in High Valley between the years 2000 and May 2003, and did not provide extensive rainfall data to show it as a distinguishing viticultural factor. The High Valley area received 18 inches of precipitation in both 2000 and 2001, 29 inches in 2002, and 35 inches from January through May 2003. In recent years, other Lake County grape-growing regions received more precipitation than the High Valley viticultural area, and the petition listed the following average precipitation amounts: Red Hills, 24 to 40 inches; Kelseyville, 46 inches; and the Putah Creek basin, 47 inches.

Originally a small east-west trending fault basin with drainage to the east, volcanic activity altered High Valley's shape and created a series of high ridges along its eastern side, forming the valley's largely enclosed basin and redirecting the valley's drainage southward into Clear Lake. This volcanic activity also created Tule Lake, a small lake on the valley's central floor, as well as Round Mountain, once an active volcanic cinder cone rising 400 feet above the northern valley floor.

The dominant rock types in the proposed High Valley viticultural area are Jurassic sedimentary rocks of the Franciscan Complex, basalt flows, and Quaternary volcanic deposits. The Franciscan Complex forms the base material and most of the exposed rock in the southern ridges and western portions of High Valley, while the Quaternary volcanics overlay the basalts found throughout the valley's eastern half. Round Mountain is a prominent High Valley feature of the Quaternary volcanics.

The two primary soil types of High Valley are weathered volcanic residue and Franciscan Complex weathered sandstone, shale, or phyllitic rocks. The east side of the area contains soils derived primarily from volcanics, while the west side contains soils from Jurassic to Cretaceous sedimentary and phyllitic source material.

The four basic soil formations within the proposed High Valley viticultural area include: (1) The Franciscan Hills along the area's southern and western boundaries, (2) the alluvial basin of High Valley, (3) the alluvial terrace along the southeast boundary, and (4) the volcanic ridges along the area's northeastern boundary near Round Mountain.

Wolfcreek loam soil, a very deep well-drained clay to sandy loam with moderately slow permeability, covers most of the High Valley floor. The eastern half of the proposed High Valley viticultural area contains Konocti variants, Konocti, Hambright, Benridge, and Sodabay Series soils. The Maymen, Hopland, and Mayacama Series soils dominate the southeast region of the High Valley area. The western hills and ridges contain primarily Millsholm, Bressa, Hopland, Estel, and Maymen Series soils.

While the High Valley soils are permeable in mild and moderately-warm to warm temperatures, soils in the nearby Big Valley allow only moderately-warm to warm temperature permeation. The soils of High Valley's slopes and ridges permit excellent drainage, unlike Big Valley's less favorable soil drainage characteristics. Further, the vine-planted slopes of the High Valley area incline about 30 percent, comparatively steeper than the 0 to 2 percent incline of Big Valley vineyards.

The High Valley area contains aquifers and natural springs to meet its irrigation needs. The limited capability of Schindler Creek to take runoff out of High Valley contributes to the valley's unusually high water table. The springs of the valley's western and eastern mountain slopes and canyons flow down to the valley floor, which also contains springs and numerous ponds.

The proposed High Valley viticultural area lies almost entirely within the established Clear Lake viticultural area (27 CFR 9.99), which surrounds the large lake of that name in Lake County, California. In turn, the Clear Lake viticultural area is entirely within the larger, multi-county North Coast viticultural area (27 CFR 9.30). To encompass the mountain ridges surrounding High Valley, a small east-northeast portion of the proposed High Valley viticultural area extends beyond the common eastern boundary of the two larger areas. The following table shows the overlapping relationships by acreage amount and percentage:

The North Coast and Clear Lake viticultural areas share a portion of their east boundary line, which runs diagonally northwest to southeast through the eastern portion of the proposed High Valley viticultural area. This common boundary line extends straight northwest from the northwest corner of section 1, T13N, R7W, on the Benmore Canyon map, which is outside the High Valley southeastern boundary line, to Round Mountain in section 21, T14N, R7W, on the Clearlake Oaks map. At the peak of Round Mountain, this shared boundary line divides. The North Coast viticultural area boundary line runs straight north-northwest, while the Clear Lake viticultural area extends straight northwest. TTB has determined that the difference in overlapping acreage between the two viticultural areas, above Round Mountain, is less than 1 percent when overlaid with the proposed High Valley viticultural area boundary lines.

To the east of the North Coast and Clear Lake viticultural areas' common boundary line, the High Valley viticultural area's east and northeast sections extend beyond any established viticultural area. This 2,622-acre, predominantly mountainous region includes the eastern ridges that surround High Valley, according to the USGS maps. The east side of Round Mountain and a small portion of the valley floor also lie outside the North Coast and Clear Lake viticultural areas.

This High Valley eastern area, beyond the North Coast and Clear Lake boundary line overlap, possesses distinguishing geographical features similar to the High Valley's western region. The portion of the High Valley area outside the established Clear Lake and North Coast viticultural areas contains the mountainous terrain and high ridges that make High Valley an enclosed basin with distinct watershed boundaries. The valley floor to the east of Round Mountain is the natural extension of the valley, with similar elevations and topography, as noted on the USGS maps. Soils derived primarily from basalts occur throughout the High Valley area from Schindler's Creek east to the boundary line.

See the narrative boundary description of the viticultural area in the regulatory text published at the end of this notice.

The petitioner(s) provided the required maps, and we list them below in the regulatory text.

TTB published a notice of proposed rulemaking regarding the establishment of the High Valley viticultural area in the Federal Register as Notice No. 28 on January 24, 2005 (70 FR 3328). In that notice, TTB requested comments by March 25, 2005, from all interested persons. TTB received no comments regarding the proposed High Valley viticultural area in response to Notice No. 28.

After careful review, TTB finds that the evidence submitted with the petition supports the establishment of the proposed viticultural area. Therefore, under the authority of the Federal Alcohol Administration Act and part 4 of our regulations, we establish the “High Valley” viticultural area in Lake County, California, effective 60-days from this document's publication date.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. With the establishment of this viticultural area and its inclusion in part 9 of the TTB regulations, its name, “High Valley,” is recognized as a name of viticultural significance. Consequently, wine bottlers using “High Valley” in a brand name, including a trademark, or in another label reference as to the origin of the wine, must ensure that the product is eligible to use the viticultural area's name as an appellation of origin.

For a wine to be eligible to use as an appellation of origin the name of a viticultural area specified in part 9 of the TTB regulations, at least 85 percent of the grapes used to make the wine must have been grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label.

Different rules apply if a wine has a brand name containing a viticultural area name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name is the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This rule is not a significant regulatory action as defined by Executive Order 12866 (58 FR 51735). Therefore, it requires no regulatory assessment.

Nancy Sutton of the Regulations and Procedures Division drafted this document.

Section 105(e) of the Federal Alcohol Administration Act (the FAA Act, 27 U.S.C. 201 et seq. ) requires that alcohol beverage labels provide the consumer with adequate information regarding product identity and prohibits the use of misleading information on those labels. The FAA Act also authorizes the Secretary of the Treasury to issue regulations to carry out its provisions. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers these regulations.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, soils, elevation, and physical features that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

Robert G. Johnson, on behalf of Carlos Creek Winery, filed a petition proposing the establishment of Alexandria Lakes as an American viticultural area. The proposed viticultural area is located in Douglas County, Minnesota, and encompasses approximately 17 square miles. Six freshwater lakes surround the area.

Below, we summarize the evidence presented in the petition.

The petitioner submitted the following items as evidence that the area is locally and nationally known as Alexandria Lakes.

• The “2002 Official Visitors Guide” for the Alexandria Lakes area, which the Alexandria Lakes Area Chamber of Commerce published. This Guide refers to the area as the “Alexandria Lakes Area.”

• Several brochures that refer to the area as the “Alexandria Lakes Area.”

• A letter from the Alexandria Lake Area Sanitary District referring to the area as the “Alexandria Lake Area.”

The boundaries of the Alexandria Lakes viticultural area, located in Douglas County, Minnesota, do not encompass the entire land mass known by that name. According to the petitioner, current viticulture and a unique microclimate limit the boundaries to those he proposed. The petitioner also indicates that certain geographical features help define the viticultural area's borders. We discuss these features further below.

The petitioner states that glacial activity, which occurred 10,000 years ago at the end of the last ice age, formed the proposed Alexandria Lakes viticultural area. The soil is unique, because the glacial activity gouged it from the surrounding areas. The steep glacial erosion produced a geographically isolated area that the region's deepest glacial lakes surround. These lakes are not only the deepest, but also, by volume, the largest in the region.

The petitioner states that the most abundant soils within in the proposed Alexandria Lakes viticultural area are of the Nebish-Beltrami association. This association is unique in that it makes up only 5 percent of the soils in Douglas County. The U.S. Department of Agriculture Soil Conservation Service (USDASCS) defines this soil as deep and well to moderately well drained. The petitioner states that vegetation in the area survives on poorer soils and has broader root systems than vegetation in surrounding regions. As evidence of this, the petitioner refers to the high concentration of hardwood trees in the proposed Alexandria Lakes viticultural area.

By contrast, the USDASCS defines the opposing lakeshores' soil, just west and north of the viticultural area, as belonging to the Waukon-Flom association, which they describe as poorly drained. The petitioner indicates that these are alluvial wash plains containing heavy lomis soils and low wetlands.

The USDASCS defines the soil associations on the opposing shores just south and east of the proposed Alexandria Lakes viticultural area as belonging to the Arvilla-Sverdrup association. These soils formed in sand or sand and gravel outwash material and are described as excessively drained.

According to the petitioner, the proposed Alexandria Lakes viticultural area's geographical features further distinguish it from surrounding regions. Six freshwater lakes almost completely surround the area. Lake Miltona, which is the largest lake in Douglas County, lies to the north. Lake Carlos, the largest lake in the Alexandria Lakes chain, according to the Alexandria Lakes Area Chamber of Commerce, lies to the east. Two small lakes, Lakes Louise and Alvin, and a medium-size lake, Lake Darling, are just south of the viticultural area boundary. Lake Ida, one of the largest lakes in the area, lies to the west.

The petitioner provided climate data for the years 1992 through 2001 from the University of Minnesota Meteorological Department's Web site. The data indicate that the Alexandria Lakes viticultural area averages less precipitation than the surrounding regions. The area's average precipitation is approximately 23.65 inches per year. By contrast, Osakis, Wadena, and Ashby Counties, which are located east, north, and west of the area, respectively, all received between 1 to 3 more inches of precipitation per year. The petitioner states that the difference results from the seasonal southern winds that blow through the area and produce moisture updrafts that result in the formation of rain clouds generally north and east of the area.

The proposed Alexandria Lakes viticultural area receives less annual snowfall than the surrounding regions, according to the petitioner. The area's average snowfall is 47.67 inches per year. By contrast, Osakis, Wadena, and Ashby all receive between 4 to 8 more inches of snowfall per year.

According to the petitioner, “the drier climate and lighter snow cover makes for lowered water tables, but watershed flowing [sic] from areas to the north and east replenish the water and maintain constant lake water levels.”

In addition, the petitioner states that the Alexandria Lakes viticultural area has temperature averages that are generally warmer in the winter and cooler in the summer than those of adjacent areas.

See the narrative boundary description of the petitioned-for viticultural area in the regulatory text published at the end of this notice.

The petitioner provided the required maps, and we list them below in the regulatory text.

In response to the petition, our predecessor Agency, the Bureau of Alcohol, Tobacco and Firearms (ATF), published Notice No. 967 regarding the proposed Alexandria Lakes viticultural area in the Federal Register on January 23, 2003 (68 FR 3199). ATF received comments from representatives of two Minnesota vineyards that opposed the establishment of the Alexandria Lakes viticultural area. These two commenters provided no substantive support for their opposition to the petition.

After careful review of the petition and the comments received, TTB finds that the evidence submitted supports the establishment of the proposed viticultural area. Therefore, under the authority of the Federal Alcohol Administration Act and part 4 of our regulations, we establish the “Alexandria Lakes” viticultural area as described in this final rule.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. With the establishment of this viticultural area and its inclusion in part 9 of the TTB regulations, its name, “Alexandria Lakes,” is recognized as a name of viticultural significance. Consequently, wine bottlers using “Alexandria Lakes” in a brand name, including a trademark, or in another label reference as to the origin of the wine, must ensure that the product is eligible to use the viticultural area's name as an appellation of origin.

For a wine to be eligible to use as an appellation of origin the name of a viticultural area specified in part 9 of the TTB regulations, at least 85 percent of the grapes used to make the wine must have been grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label.

Different rules apply if a wine has a brand name containing a viticultural area name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We certify that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This final rule is not a significant regulatory action as defined by Executive Order 12866, 58 FR 51735. Therefore, it requires no regulatory assessment.

Lisa M. Gesser of the Regulations and Procedures Division drafted this final rule.

Section 105(e) of the Federal Alcohol Administration Act (the FAA Act, 27 U.S.C. 201 et seq. ) requires that alcohol beverage labels provide the consumer with adequate information regarding a product's identity and prohibits the use of misleading information on such labels. The FAA Act also authorizes the Secretary of the Treasury to issue regulations to carry out its provisions. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers these regulations.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

TTB received a petition proposing the establishment of the Horse Heaven Hills viticultural area in south-central Washington State from Paul D. Lucas, who filed the petition on behalf of wine grape growers within the area. Located in the portions of Klickitat, Yakima, and Benton counties north and west of the Columbia River and south of the Yakima Valley, the proposed Horse Heaven Hills viticultural area is about 115 miles east of Vancouver, Washington. At about 60 miles long and 22 miles wide, the Horse Heaven Hills viticultural area covers some 570,000 acres, of which about 6,040 acres are planted to grapes.

The large, existing Columbia Valley viticultural area (27 CFR 9.74) encompasses the proposed Horse Heaven Hills viticultural area, as well as the existing Yakima Valley (27 CFR 9.69), the Walla Walla Valley (27 CFR 9.91), and the Red Mountain (27 CFR 9.167) viticultural areas. The Horse Heaven Hills area lies southeast of the Yakima Valley area, south of Red Mountain area, and about 30 miles west of the Walla Walla Valley area, which is on the east, or opposite, side of the Columbia River.

The proposed Horse Heaven Hills viticultural area consists predominantly of open, dry plains and hills. The viticultural area includes a series of south-facing slopes and has dozens of drainages running in a spoke pattern from north to south and into the Columbia River. The strong winds that blow through the Columbia River Valley are the unique and distinctive feature of the Horse Heaven Hills area and directly affect the area's viticulture.

Below, we summarize the evidence presented in the petition.

The range of hills in south-central Washington State in which the proposed Horse Heaven Hills viticultural area is located has been referred to by that name since 1857. The books “Benton County Place Names” and “Prosser—The Home County,” explain that cattleman James Kinney named the hills that year while camping near Kiona, Washington. Kinney awoke to find that his animals had wandered up a mountainside and into an upland plain where they were dining on succulent bunch grass. According to the books, he commented to himself, “Surely this is Horse Heaven.”

The first official use of the name Horse Heaven in conjunction with this area dates to 1884 with the founding of the Horse Heaven School, according to an untitled history of the region. This history also notes that the Horse Heaven Cemetery started in the garden of William Dennis, a local resident killed in an 1892 harvest accident. Local newspapers, such as the Prosser Falls American (circa 1893), often referenced the Horse Heaven Hills name, as did books written about the area such as “Against Odds, A Personal Narrative of Life in Horse Heaven” (K. Elizabeth Sihler, Concordia Publishing House, St. Louis, Missouri, 1917). More recently, the Yakima-Herald published an online wine article in 2001 that mentions the Horse Heaven Ranch.

Today, the hills are still officially and popularly called the “Horse Heaven Hills” and have survived attempts to change the region's name to Benton Slope or Columbia Plains. For example, the United States Geological Survey (USGS) maps, as well as official State maps and atlases, consistently label this region as the “Horse Heaven Hills.” The American Automobile Association map for the States of Oregon and Washington, published February 2003, also identifies the region in which the proposed viticultural area lies as the “Horse Heaven Hills.”

Growers have raised grapes in the Horse Heaven Hills region since 1972, when Don Mercer planted a 5-acre parcel of Cabernet Sauvignon at Phinny Hill, Washington. Between 1978 and 1981, Stimson Lane planted 2,000 acres in Paterson, Washington, including Merlot, Cabernet Sauvignon, Gewurztraminer, Riesling, Sauvignon Blanc, and Grenache grapes. By the mid 1980s, commercial wine production included the Mercer Ranch Vineyards' Cabernet Sauvignon, and St. Michelle's Gewurztraminer, Grenache Rose, and Cabernet Sauvignon.

Plantings continued from the mid 1980s through the early 1990s in the Horse Heaven Hills region, and greatly accelerated after the vineyards in the Horse Heaven Hills survived the hard freeze of 1996, which destroyed much of Washington State's grape crop. As of 2002, there are at least 20 vineyards, with over 6,040 acres planted, plus four commercial wineries within the region.

The proposed Horse Heaven Hills viticultural area boundary is generally based on the hills' geographic extent and topography, and on a combination of their climate, terrain, and soils. These factors differentiate the Horse Heaven Hills from the surrounding geographic regions, as well as from the nearby, established viticultural areas of Yakima Valley, Walla Walla Valley, and Red Mountain and the larger, surrounding Columbia Valley area.

The Columbia River marks the natural eastern and southern boundary of the Horse Heaven Hills and thus serves as the proposed viticultural area's eastern and southern boundary. To the west in Klickitat County, the Horse Heaven Hills give way to more extreme terrain. Here, Pine Creek and the 1,700-foot contour line are used to mark the viticultural area's western boundary. In the north, the slopes of the Horse Heaven Hills gradually rise to the crest of the ridge that separates the hills from the much lower Yakima Valley. This ridge, the Yakima Valley side of which is generally very steep, marks the northern limit of the proposed Horse Heaven Hills viticultural area as well.

The proposed Horse Heaven Hills viticultural area is a unique grape-growing region distinguished from the nearby viticultural areas of Yakima Valley, Red Mountain, Walla Walla Valley, and from the larger, surrounding Columbia Valley viticultural area. The primary distinguishing factors of the Horse Heaven Hills area include its topography, wind, annual heat unit accumulation, and precipitation.

The proposed Horse Heaven Hills viticultural area is located in south-central Washington State, east of the Cascade Mountain Range and north and west of the Columbia River, which bisects eastern Washington State. The terrain within the viticultural area's 570,000 acres consists largely of south-sloping, open and dry plains, which have the geographical characteristics of a watershed, with dozens of drainages running north to south through the area in a wheel spoke pattern. Elevations range from 1,800 feet at the area's northern boundary to 200 feet at its southern boundary along the Columbia River, which forms the area's southern and eastern boundary.

To the north, the Yakima Valley borders the proposed Horse Heaven Hills viticultural area. The steep slope and cliffs of the Yakima Valley and the crest of the Horse Heaven Hills form a natural boundary between the two viticultural regions. Only three Washington State Department of Transportation-maintained road passes exist between the Horse Heaven Hills and the Yakima Valley. In the west, Pine Creek, which flows south to the Columbia River, and the 1,700-foot contour line mark the boundary between the south-facing slopes of the Horse Heaven Hills and the more extreme terrain found to the west.

A significant distinguishing feature of the proposed Horse Heaven Hills viticultural area is the heavy amount of strong wind the area receives. Based on the area's proximity to the Columbia River, and because the Columbia Gorge acts as a funnel, the Horse Heaven Hills area receives significantly more wind than surrounding areas.

In an article titled “The Columbia Gorge Wind Funnel” in the July 2003 issue of Weatherwise magazine (pages 104 through 107), Howard E. Graham of the National Weather Service's Portland, Oregon, office explains that the Columbia Gorge wind patterns are a function of the pressure differences between the west and east ends of this 120-mile long river canyon. The Gorge surrounds the Columbia River between Bridal Veil to the west, and Arlington to the east. The article emphasizes that the winds, rarely calm, always flow along the axis of the Gorge. The Pacific winds from the west bring moderating, mild maritime air into the Gorge. Conversely, the continental high winds from the east bring in dry air that is seasonably hot or cold. The heat of the Columbia Basin draws these intense winds north over Horse Heaven Hills after they exit the Columbia Gorge.

Wind through the Columbia Gorge is determined by Wind Run Miles (WRMs), a unit of measure for the force and speed of wind in one hour. The Horse Heaven Hills viticultural area records an average of 30 percent more WRMs than the Walla Walla Valley viticultural area to the east and the Yakima Valley viticultural area to the north, and 20 percent more than the Red Mountain viticultural area to the immediate north. The three surrounding viticultural areas, unlike the Horse Heaven Hills region, are not in the direct wind funnel path of the Columbia Gorge.

The wind's effect on viticulture is especially noted during the grapevine bud-break to fruit-set period, according to a 1982 article, “Influence of Windbreaks and Climatic Region on Diurnal Fluctuation of Leaf Water Potential, Stomatal Conductance, and Leaf Temperature of Grapevines,” by Freeman, Kliewer, and Stern in the American Journal of Enological Viticulture, vol. 33:233-236. The most-often observed consequences of the higher winds within the proposed Horse Heaven Hills viticultural area include a reduction in canopy size and density of grapes on the vines. Also, vines are less prone to disease, based on the wind's drying of wet plant surfaces on which fungal spores or bacteria can land. The volume of wind is also a key factor in determining the amount of irrigation needed for optimum vine growth.

The proposed Horse Heaven Hills viticultural area has a relatively warm growing season within the Columbia Valley region of Washington State. This growing season warmth has a dramatic impact on harvest dates and fruit quality. The harvest time in the Horse Heaven Hills may start up to two weeks before the harvest in the Yakima Valley, 40 miles to the northwest. The Horse Heaven Hills growing season allows growers to ensure full maturity in mid-to late-season grape varieties while receiving the benefit of extended time on the vine. The length of the growing season produces unique fruit characteristics, resulting in many “single vineyard” designated wines. It also decreases the risk of fall frost and harvest time disease.

The Annual Heat Units index calculates the sum of the average daily temperatures above a threshold of 50 degrees Fahrenheit during the growing season. This method determines and compares the heat growing conditions of viticultural areas.

Central and eastern Washington State receives most of its annual rainfall in the winter months when grapevines are dormant. As a result, all grape-growing areas in this region require supplemental irrigation. However, the low amount of precipitation received during the growing season reduces the risk of harmful diseases that may occur in the vineyard. The low amount of water that grapevines in the Horse Heaven Hills receive prevents excessive vine canopy growth, which may lead to grapes with vegetative flavors, excessive acidity, reduced color, and large berry size.

The proposed Horse Heaven Hills viticultural area receives about 9 inches of rain annually. This is 45 percent less rainfall than the 19.7 inches in the Walla Walla Valley area to the east, 30 percent less than Chelan, Washington, at 13.2 inches rainfall, to the north, and 13 percent more than the Yakima Valley, at 7.8 inches, to the immediate north.

Three dominant parent materials form the soils found within the proposed Horse Heaven Hills viticultural area, according to Alan Busacca of the Department of Crop and Soil Sciences, Washington State University: (1) Eolian sand and silt (wind blown dunes and loess); (2) sediments from giant glacial outburst floods, including gravelly alluvium and stratified fine sands and silts (slackwater sediments); and (3) hill slope rubble from the Columbia River Basalt bedrock. The soils of each Washington State viticultural area are distinct, with variations in the proportion and distribution of the three parent materials noted above, according to Larry Meinert, a professor of Geology at Washington State University. The westerly wind transport predominant in the proposed Horse Heaven Hills area and the direction of glacial floods create a differing grain size distribution of the soils in the region as compared to the surrounding viticultural areas.

The proposed Horse Heaven Hills viticultural area's low annual precipitation and its hot summers act to weather the parent materials and soils. The soils are mainly classified as Aridisols (desert soils) and Mollisols (prairie soils), which are formed from various combinations of the three parent materials, according to the Soil Survey Staff in “Soil Taxonomy, A Basic System of Soil Classification for Making and Interpreting Soil Surveys,” (Second Edition, 1999, USDA Natural Resources Conservation Service).

See the narrative boundary description of the petitioned-for viticultural area in the proposed regulatory text published at the end of this notice.

The petitioner provided the required maps, and we list them below in the regulatory text.

TTB published a notice of proposed rulemaking regarding the establishment of the Horse Heaven Hills viticultural area in the Federal Register as Notice No. 27 on January 24, 2005 (70 FR 3322). In that notice, TTB requested comments by March 25, 2005, from all interested persons. TTB received six comments in response to the notice. All comments supported the establishment of the Horse Heaven Hills viticultural area based on its distinguishing viticultural features and the “Horse Heaven Hills” name, which accurately identifies this geographical region.

In this final rule, we altered the location of the Horse Heaven Hill viticultural area's proposed northern boundary between Webber and Badger Canyons in Benton County in order to simplify the boundary's description. The area's northern boundary remains the same as proposed up to the 1,745-foot peak on the western side of Webber Canyon. From that peak, rather than following a more complex series of contour and section lines between the two canyons, the finalized boundary continues southeasterly along a straight line to the 1,757-foot peak on the western side of Badger Canyon. From that peak the boundary proceeds due south to Smith Road, where it continues as proposed in Notice No. 27. This change makes this boundary section more consistent with the remainder of the viticultural area's northern boundary, which generally follows a series of straight lines drawn through peaks in the ridge separating the Horse Heaven Hills from the Yakima Valley. This boundary change increases the size of the Horse Heaven Hills area by less than 1,000 acres.

In addition, we altered the wording of several other boundary description paragraphs for clarity, but we did not change the location of the viticultural area's boundary except as noted above.

After careful review of the Horse Heaven Hills viticultural area petition and the comments received, TTB finds that the evidence submitted supports the establishment of the proposed viticultural area. Therefore, under the authority of the Federal Alcohol Administration Act and part 4 of our regulations, we establish the “Horse Heaven Hills” viticultural area, located along the Columbia River in portions of Klickitat, Yakima, and Benton counties in south-central Washington State, effective 30-days from the publication date of this final rule.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. With the establishment of this viticultural area and its inclusion in part 9 of the TTB regulations, its name, “Horse Heaven Hills,” is recognized as a name of viticultural significance. In addition, the name “Horse Heaven” standing alone is considered a term of viticultural significance since the names “Horse Heaven Hills” and “Horse Heaven” are often used interchangeably, and the name “Horse Heaven” applies to places within the boundary of the Horse Heaven Hills viticultural area. Consumers and vintners could, therefore, reasonably attribute the quality, reputation, or other characteristic of wine made from grapes grown in the Horse Heaven Hills viticultural area to the name Horse Heaven itself. Consequently, wine bottlers using “Horse Heaven Hills” or “Horse Heaven” in a brand name, including a trademark, or in another label reference as to the origin of the wine, must ensure that the product is eligible to use the viticultural area's name as an appellation of origin.

For a wine to be eligible to use as an appellation of origin the name of a viticultural area specified in part 9 of the TTB regulations, at least 85 percent of the grapes used to make the wine must have been grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible to use the viticultural area name as an appellation of origin and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label.

Different rules apply if a wine has a brand name containing a viticultural area name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name is the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This rule is not a significant regulatory action as defined by Executive Order 12866 (58 FR 51735). Therefore, it requires no regulatory assessment.

Nancy Sutton of the Regulations and Procedures Division drafted this document.

It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

It has been certified that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.

It has been certified that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.

It has been certified that the Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.

It has been certified that the Privacy Act rules for the Department of Defense do not have federalism implications. The rules do 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.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Logistical details surrounding the events were not finalized and presented to the Coast Guard in time to draft and publish an NPRM. As such, the events would occur before the rulemaking process was complete. Because of the dangers posed by the pyrotechnics used in the fireworks displays, special local regulations are necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event areas. For the safety concerns noted, it is in the public's interest to have these regulations in effect during the events.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Any delay in the effective date of this rule would expose mariners to the dangers posed by the pyrotechnics used in the fireworks displays.

Various public and private agencies are sponsoring short fireworks displays between July 3, 2005, and July 5, 2005, throughout the Captain of the Port, San Francisco Bay Zone. The fireworks displays are meant for entertainment purposes in celebration of the Fourth of July Holiday. These special local regulations are being issued to establish temporary regulated areas around fireworks launch barges during the loading of pyrotechnics, during the transit of the barges to the display locations, and during the fireworks displays. For those displays launching fireworks from shore, temporary regulated areas are being established in the waters surrounding the shore-based launch locations. These regulated areas around the fireworks launch barges and launch locations are necessary to protect participants, spectators, and mariners transiting the event areas from the hazards associated with the pyrotechnics being used. The Coast Guard has granted marine event permits for each of the fireworks displays listed in this regulation.

The Coast Guard is establishing temporary special local regulations on specified waters of the Captain of the Port, San Francisco Bay Zone. For each of the fireworks displays involving barges, the special local regulations apply to the navigable waters around and under the fireworks barge(s) within a radius of 100 feet during the loading of pyrotechnics onto the barge(s), the towing of the barge(s) to the display location, and until the start of the fireworks display. During the fireworks display, the area to which these special local regulations apply will increase in size to encompass the navigable waters around and under the fireworks barge(s) within a radius of 1,000 feet. For shore-fired fireworks displays, the special local regulations apply to the navigable waters surrounding the launch location within a radius of 1,000 feet during the fireworks display.

For barge-fired displays, the effect of the temporary special local regulations will be to restrict general navigation in the vicinity of fireworks barges during the loading of pyrotechnics, during the transit of the fireworks barges, and until the conclusion of the scheduled display. For shore-fired displays, the effect of the temporary special local regulations will be to restrict general navigation in the vicinity of the launch location during the fireworks display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no persons or vessels may enter or remain in the regulated areas. These regulations are needed to keep spectators and vessels a safe distance away to ensure the safety of participants, spectators, and transiting vessels.

Pursuant to 33 U.S.C. 1236, persons violating these special local regulations may be liable as follows: Suspension or revocation of the license of a licensed officer for incompetence or misconduct; civil penalty of $6,500 for any person in charge of the navigation of a vessel other than a licensed officer; civil penalty of $6,500 for the owner of a vessel (including any corporate officer of a corporation owning the vessel) who is actually on board; and $2,750 for any other person.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

Although these regulations prevent traffic from transiting portions of the San Francisco Bay zone, the effect of these regulations will not be significant due to the small size and limited duration of the regulated areas. The entities most likely affected are pleasure craft engaged in recreational activities and sightseeing.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may effect owners and operators of pleasure craft engaged in recreational activities and sightseeing, and small commercial sightseeing vessels. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the regulated areas, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the regulated areas to engage in these activities, (iii) this rule will encompass small portions of the waterways for a limited period of time, and (iv) the maritime public will be advised in advance of these special local regulations via public notice to mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions, options for compliance, or assistance in understanding this rule, please contact Lieutenant Doug Ebbers, U.S. Coast Guard Marine Safety Office San Francisco Bay, at (510) 437-5873.

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

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under those sections.

Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. An NPRM was not published for this regulation because the logistics for the fireworks presentation were not determined with sufficient time to draft and publish an NPRM. Any delay encountered in this regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of Ipswich Bay during the fireworks display and to provide for the safety of life on navigable waters.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Any delay encountered in this regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of Ipswich Bay during the fireworks event thus ensuring that the maritime public is protected from any potential harm associated with such an event. Additionally, the zone should have a negligible impact on vessel transits due to the fact that vessels will be limited from the area for only 2 hours, and vessels can still transit in the majority of Ipswich Bay during the event.

This temporary rule establishes a safety zone in Ipswich Bay within a four hundred (400)-yard radius of the fireworks launch site located at approximate position 42°41′.5″ N, 070°46′.55″ W. The safety zone will in effect from 8:30 p.m. e.d.t. until 10:30 p.m. e.d.t. on July 3, 2005.

The zone will restrict movement within this portion of Ipswich Bay and is needed to protect the maritime public from the dangers posed by a fireworks display. Marine traffic may transit safely outside of the safety zone during the effective period. The Captain of the Port does not anticipate any negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via safety marine information broadcasts and local notice to mariners.

The safety zone is in effect from 8:30 p.m. e.d.t. until 10:30 p.m. e.d.t. July 3, 2005. Marine traffic may transit safely outside of the safety zone in the majority of Ipswich Bay during the event. Because of the limited time-frame of the effective period and because the zone leaves the majority of Ipswich Bay open for navigation, the Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to the effective period via Local Notice to Mariners and marine information broadcasts.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation of the regulatory policies and procedures of DHS is unnecessary. Although this rule will prevent traffic from transiting a portion of Ipswich Bay during the effective periods, the effects of this rule will not be significant for several reasons: Vessels will be excluded from the area of the safety zone for only 2 hours, vessels will be able to operate in the majority of Ipswich Bay during the effective period, and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Ipswich Bay from 8:30 p.m. e.d.t. to 10:30 p.m. e.d.t. on July 3, 2005.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for only 2 hours, vessel traffic can safely pass around the safety zone, and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners.

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

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(g), as it would establish a safety zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The exact date of the event was not known in sufficient time to allow for the publication of an NPRM followed by publication of an effective date before the event. And delaying this rule would be contrary to the public interest of ensuring the safety of dignitaries and vessels during this event, and immediate action is necessary to prevent possible loss of life or property.

For these same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

This security zone is necessary ensure the safety of the vessel and dignitaries visiting Cleveland from any potential hazards or threats associated with foreign warships and dignitary visits.

The combination of large numbers of inexperienced recreational boaters, congested waterways, and crossing commercially transited waterways could result in an unnecessary security risk to any visiting dignitaries

Establishing security zones gives the Coast Guard and Law Enforcement agencies an opportunity to secure an area before a dignitary arrives.

The Coast Guard is establishing a security zone at Cleveland's inner harbor in Cleveland, OH. The security zone includes all waters from Cleveland Port Authority (CPA) Dock 20 along the shoreline east to CPA dock 24. Then from dock 24 extends north to the break wall just east of buoy 14. The security zone follows the break wall west to the “Lake Approach Channel” Structure 3 (flashing green 4s), then south to CPA dock 20 as marked by structure 5 (flashing green 2.5s).

Entry into, transit through, or anchoring within this security zone is prohibited unless authorized by the Captain of the Port Cleveland or his designated on-scene representative. The designated on-scene representative will be the Coast Guard Patrol Commander. The Coast Guard Patrol Commander may be contacted via VHF Channel 16. The Coast Guard will notify the public in advance by way of Ninth Coast Guard District Local Notice to Mariners, marine information broadcasts, and for those who request it from marine Safety Office Cleveland, by facsimile.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed this rule under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

This determination is based on the size and location of the security zone within the water. The security zone will hinder commercial vessels, as they will not be able to transit within the breakwater during the period this zone is in effect. Recreational vessels will not be allowed to transit through the designated security zone during the specified times.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which might be small entities: The owners or operators of commercial vessels intending to transit a portion of the activated security zone.

This security zone would not have a significant economic impact on a substantial number of small entities for the following reasons: The proposed zone is only in effect while the HMCS Toronto is in port. Before the activation of the security zone, the Coast Guard notify mariners through the Ninth District Coast Guard Local Notice to Mariners, Marine Information Broadcasts and when requested by facsimile.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Allen Turner, U.S. Coast Guard Marine Safety Office Cleveland, 1055 East 9th Street, Cleveland, OH 44114. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this proposed rule might impact tribal government, even if that impact may not constitute a “tribal implication” under that Order.

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedure; and related management system practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation.

While not required, a preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES for your review.

These regulations implement section 2303(c) of Title II, Part C, Subpart 1, Chapter A of the Act, as amended by the No Child Left Behind Act of 2001 (NCLB) (Pub. L. 107-110), enacted January 8, 2002. Subpart 1, Transitions to Teaching, of Chapter A authorizes the Troops-to-Teachers program. This program provides assistance, including stipends of up to $5,000, to eligible members of the Armed Forces so that they can obtain certification or licensing as elementary school teachers, secondary school teachers, or vocational/technical teachers and become highly qualified teachers. In addition, the program helps participants find employment in high-need LEAs or public charter schools.

With respect to participation agreements under section 2304(a)(1)(B) of the Act signed on or after September 15, 2005, only full-time employment in a “high-need LEA” or “public charter school” as defined in 34 CFR 230.2 will satisfy the Act's service requirement. Participation agreements signed prior to September 15, 2005 are not subject to the new definitions.

On January 14, 2005 the Secretary published a notice of proposed rulemaking (NPRM) for this program in the Federal Register (70 FR 2582). The NPRM proposed regulations implementing section 2303(c)(1) of the Act, which directs the Secretary to prescribe criteria to be used to select eligible members of the Armed Forces to participate in the program. The NPRM also proposed regulations to resolve an ambiguity in the Act regarding the definitions of a “high-need local educational agency” and “public charter school.”

In response to the Secretary's invitation in the NPRM, approximately 100 parties submitted comments on the proposed regulations. An analysis of the comments and of the changes in the regulations since publication of the NPRM follows.

We discuss substantive issues under the sections of the regulations to which they pertain. Generally, we do not address technical and other minor changes—and suggested changes the law does not authorize the Secretary to make.

Comment: One commenter stated that § 230.1, which is simply a brief general description of the Troops-to-Teachers program, does not provide an accurate context for the proposed regulations that follow it because, according to the commenter, that section inaccurately stated that bonuses may be paid to teachers agreeing to serve in “high-poverty schools” when in fact the Act specifies teachers in a “high-need school”. According to this comment, the Department's alleged failure to recognize the distinction between low income and high poverty established an inaccurate context for all of the proposed regulations that followed the brief program description.

Discussion: The legal standard for schools in which service will satisfy the service requirement for bonuses is set forth unambiguously in section 2304(d)(3) of the Act. “High-need school,” which is defined by the Act, is a distinct term unrelated to the term high-need LEA, which is not defined in the Act. In the proposed regulations, “high-poverty schools” was used as a shorthand description of one technical provision of the Act in the general description of the Troops-to-Teachers program in § 230.1. By its nature, such a brief description is not intended to substitute for the Act, address every aspect of the Act, or provide a detailed discussion of each of the Act's technical provisions. However, the Secretary has concluded that the regulation can be improved by adhering closely to the statutory language on bonuses, and the regulation has been changed accordingly.

Change: Section 230.1 has been amended to specify in the last sentence that, in lieu of a stipend, the Defense Activity for Non-Traditional Education Support (DANTES) may pay a bonus of $10,000 to a participant who agrees to teach in a high-need school.

Comments: Virtually every commenter opposed the proposed definition of high-need LEA in § 230.2. Many commenters asserted that the proposed definition would seriously injure the Troops-to-Teachers program, the schools and students it serves, and service members who have sacrificed greatly to serve their country. Several commenters stated that the effect of the proposed definition would be to remove strong teacher candidates from the classrooms that need them most. Commenters presented examples of instances where they believed that the most needy schools would be disqualified under the proposal. For example, one commenter asserted that the Texas LEAs serving Fort Hood would not be high-need LEAs under the proposed definition, but have been commended for making that military installation one of the few locations where service personnel can obtain the full range of special educational services for their families.

One commenter urged the Secretary to establish the policy that three years of service as a full-time classroom teacher in any public or charter school classroom satisfies the service commitment under the Act.

Many commenters asserted that the number of eligible LEAs in their State would be severely and inappropriately restricted under the proposed definition. For example, according to one commenter, whereas 80 percent of Colorado's LEAs are currently classified as high-need LEAs, under the proposal the number would shrink to six (1.6 percent). According to another commenter, there would be a 67 percent reduction in the number of high-need LEAs in North Carolina. Numerous other commenters presented similar statistics for their States.

According to a comment filed by a representative of DANTES, which administers the program under a memorandum of agreement with the Department, on a national basis about 39 percent of LEAs would qualify under the proposed definition (compared with 70 percent under the standard DANTES currently uses).

One commenter stated that, unlike other educational career transition programs, the Troops-to-Teachers program has as its primary emphasis assistance to retiring members of the military. In addition, according to this comment, the Congress has historically recognized that this program's participants are located throughout the world in locations that do not permit them to anticipate with any certainty where they will be seeking employment as teachers at the conclusion of their military careers. The comment urges the Secretary to recognize this unique aspect of the program in defining high-need LEAs in which participants can satisfy their service obligation.

Several commenters asserted that the proposed definition conflicts with the basic purpose of the Troops-to-Teachers program, which they asserted is to facilitate the employment of former service members in LEAs that receive grants under Part A of Title I of the Act. One commenter stated that “high-need LEA” should be defined in terms of low-income students in the same manner as Part A of Title I, rather than using the criteria in the proposed definition. Numerous commenters argued that the current definition of high-need LEA, which is based on free and reduced price lunch (FRPL) eligibility, is consistent with section 2302(b)(2)(a)(i) of the Act, which states that the program is authorized to facilitate the employment of service members in LEAs or public charter schools receiving grants under part A of Title I as the result of having concentrations of children from low-income families. According to these comments, the phrase “concentrations of children from low-income families” has been operationally defined by DANTES to mean LEAs with 20 percent or more of their students eligible for a free or reduced price lunch.

Several commenters questioned the use of census poverty data for determining whether an LEA has enough children from families with incomes below the poverty line to be considered a high-need LEA, because of concerns about the reliability of those data. Another commenter suggested that FRPL data available from the Food and Nutrition Service in the U.S. Department of Agriculture (USDA) may be a more accurate measure of poverty and should be used for determining whether an LEA has enough children from low-income families to be considered a high-need school district.

Under the proposed regulation, the term “high-need local educational agency” would have meant an LEA: (1) That serves not fewer than 10,000 children from families with incomes below the poverty line; (2) for which not less than 20 percent of the children served by the agency are from families below the poverty line; or (3) for which not less than 15 nor more than 19 percent of the children served by the agency are from families below the poverty line and that assigns all teachers funded by the Troops-to-Teachers Program to high-need schools.

Several commenters suggested alternative definitions of high-need LEA. Several suggested that the definition of high-need LEA be changed to be identical to the statutory definition for high-need school in section 2304(d)(3) of the Act. Under section 2304(d) of the Act, a Troops-to-Teachers program participant must agree to teach in a high-need school in a high-need LEA in order to qualify for a bonus in lieu of a stipend. Another commenter suggested that the proposed definition be changed slightly so that the first tier of the definition applies to an LEA with 7,500 rather than 10,000 children from families with incomes below the poverty line and that the range for qualification for the third tier of LEAs be amended to between 10 and 19 percent rather than between 15 and 19 percent while retaining the proviso that all Troops-to-Teachers program participants in that tier of LEAs be assigned to high-need schools.

Finally, one commenter questioned whether the intent of the proposed definition is to reduce the cost of the program by reducing the number of participants who can gain employment in a high-need LEA.

Discussion: The suggestion that the Secretary establish the policy that service in any LEA or public charter school will meet the service obligation under the Act is contrary to the evident intent of the Act. While the Act failed to define the terms “high-need LEA” and “public charter school,” the Act does make a distinction between them and other LEAs, and this distinction must be given effect. The Act's requirement in section 2304(a)(1)(B) that participants agree to serve in those entities rather than in LEAs generally (if they are to receive financial assistance) makes it clear that not every LEA can provide employment that will satisfy the Act. Therefore, the Secretary rejects this suggestion.

As noted in the NPRM, the proposed definition was not motivated by a desire to realize cost savings for the program. To the contrary, the Administration, through its budget policy, has been very supportive of Troops-to-Teachers. The definition was intended to balance the need to provide program participants with reasonable opportunities to satisfy their teaching commitments under the program with the need to target recruitment assistance to LEAs with the greatest need for that assistance.

The Secretary acknowledges that the nature of military service introduces uncertainty for program participants, particularly for those stationed overseas upon enrollment in the program. These participants may be unable to anticipate where they ultimately will be seeking employment as teachers. The Secretary notes that the Troops-to-Teachers program has its historical antecedents under prior statutes that placed primary emphasis on the placement of retiring service members and comparatively little emphasis on ensuring that resources were targeted to high-need LEAs. Not surprisingly, these statutes did not require service in a “high-need LEA.” In contrast, the Act now requires such service, signifying that, unlike under prior law, some greater degree of targeting of resources is required. Moreover, the Act as a whole, of which the Troops-to-Teachers statute is a part, evidences Congressional intent to target resources to LEAs in need. Specifically, by more precisely directing funds, under programs like Title I grants to LEAs, Teacher Quality State grants, and Educational Technology State grants to LEAs with high concentrations of child poverty, Congress not only made NCLB a vehicle for holding LEAs accountable for teaching all children to high standards, but also targeted funding through the Act to those LEAs with the greater need for assistance in achieving that objective. The amendments made to the Troops-to-Teachers program by NCLB were consistent with that more general thrust of the Act.

While the Secretary is not free to ignore the imperative that resources be targeted, with the benefit of the public comments in response to the NPRM, the Secretary has concluded that some adjustment of the definition of “high-need LEA” is necessary to balance the objectives of placing retiring service members in the teaching profession and serving needy LEAs. In this final regulation, the Secretary amends the third tier of the definition of “high-need LEA,” as suggested by a commenter, so that that it applies to LEAs with 10 percent or more but less than 20 percent of their children from families below the poverty line. The provision that all Troops-to-Teachers program participants in the third tier must be assigned to high-need schools is unchanged.

The same commenter's other suggestion, that the threshold for the first tier of the definition, LEAs serving 10,000 or more students from families below the poverty line, be expanded to apply to LEAs with 7,500 or more such students has not been adopted. In considering this second suggestion, the Secretary found that once the change in percentage in the third tier is made, this additional change in the first tier would not significantly increase the number of LEAs that would be considered high-need.

The Secretary rejects the suggestion by several commenters that “high-need LEA” be defined identically to the statutory definition for “high-need school” in section 2304(d)(3) of the Act because that suggestion is not consistent with the Act. The Act makes a distinction between high-need LEAs and high-need schools that the suggestion would negate. Any participant who receives any financial support, whether stipend or bonus, must agree to teach in a high-need LEA or public charter school. There is yet a further threshold for those who wish to receive a bonus in lieu of a stipend. Those participants must also agree to teach in a high-need school within a high-need LEA or in a public charter school. Eliminating the distinction between a high-need LEA and a high-need school would eliminate currently eligible LEAs from the program since not all of those LEAs have high-need schools. Moreover, if all participants were assigned to high-need schools, they would all be eligible for bonuses; the statutory provisions for stipend would become superfluous.

As revised, the definition of high-need LEA has been expanded and should provide an adequate universe of LEAs in which participants can satisfy their teaching obligations. Approximately 22 percent of the LEAs in the country serve communities in which 20 percent or more of school-aged children are from families with incomes below the poverty line. An additional approximately 36 percent of LEAs in the country serve communities in which 10 percent or more but less than 20 percent of school-aged children are from families with incomes below the poverty line. Participants who teach in this class of LEAs can satisfy their obligations if they teach in high-need schools.

With potentially 58 percent of the LEAs in the country eligible as high-need LEAs, the Secretary rejects the contentions that the effect of the definition is to remove strong teacher candidates from the classrooms that need them most or that the most needy schools will be disqualified under the final regulation. If anything, the definition errs on the side of being over-inclusive rather than under-inclusive. Potentially, most of the LEAs in the country, serving approximately 65 percent of the Nation's K-12 population, are eligible under the revised definition.

As noted previously, with regard to the contention that the more narrow proposed definition excluded the most needy LEAs, one commenter alleged that the schools surrounding Fort Hood would be eliminated from eligibility under the proposed rule. However, according to data obtained from DANTES, even under the more narrow proposed definition, a number of LEAs within a 25-mile radius of Fort Hood would be considered high-need LEAs. Under the more expansive revised definition, most of those LEAs could potentially be high-need LEAs.

Similarly, the comments—that the proposed definition would have drastically reduced the number of eligible LEAs in particular States—have been largely addressed by the expansion of the definition of high-need LEA. As a result, the Secretary believes that in each State there should be a sufficient number of high-need LEAs with a geographical distribution adequate to provide an appropriate range of options to program participants while remaining faithful to the intent of the Act to target resources. For example, Colorado and North Carolina were two of the States in which commenters asserted that there would be a drastic reduction in eligible LEAs under the more narrow proposed rule; there will potentially be 121 of 180 Colorado LEAs eligible and 110 of 120 North Carolina LEAs eligible under the final regulation.

The Secretary disagrees with the commenters who opposed the use of Census Bureau data in the application of the definition of “high-need LEA.” U.S Census Bureau's development of model-based census estimates for LEA poverty rates grew out of the 1994 reauthorization of the Act. In the 1994 amendments to the Act, Congress mandated that the Department use census data that are updated every two years to calculate Title I LEA allocations. The NCLB amendments to Act in 2002 reaffirmed the policy to use updated census data developed through the Census Bureau's model to determine Title I allocations and further required that LEA poverty estimates be updated every year rather than every two years. The decision made by Congress to continue using updated LEA census estimates was based on an evaluation by the National Academy of Sciences (NAS) of the methodology used by the Census Bureau in developing these model-based estimates. In its 1999 “Interim Report 3: Evaluation of 1995 County and School District Estimates for Title I allocations,” NAS concluded “ * * * that the Census Bureau's * * * [updated] estimates are generally as good as—and, in some instances, better than—estimates that are currently being used.” Thus, NAS “recommends to the Secretaries of Education and Commerce that the Census Bureau's * * * school district estimates of poor school-age children be used to make direct Title I allocations to school districts for the 1999-2000 school year.” After consulting with NAS and the Census Bureau, the Department of Education and the Department of Commerce jointly decided to follow NAS’ recommendation and allocate fiscal year 1999 Title I funds to LEAs using updated Census Bureau school district estimates. The Department has continued to rely on updated LEA Census model-based estimates because it strongly believes that these estimates, while not perfect, represent the best data available on the number and location of children from low-income families in LEAs across the country. The Department is currently using 2002 Census estimates to allocate more than $12.7 billion in fiscal year (FY) 2005 Title I, Part A funds to LEAs and will use updated 2003 Census estimates to allocate funds made available in the FY 2006 appropriation.

While there are other LEA-level data, such as FRPL, that measure poverty, the Secretary believes that the Census estimates provide a better measure of the extent of poverty nationally for several reasons. First, the family income threshold needed to qualify for the FRPL program is 185 percent of the poverty level used by the Census Bureau. Hence, many more children qualify for the FRPL program than are considered poor under the census definition, which makes FRPL eligibility too expansive a measure of poverty.

Second, FRPL data tend to under-count children in middle and high schools, because children in the upper grades tend to participate in the school lunch program in significantly lower numbers. Therefore, the number of poor children in high school districts are typically not accurately represented by FRPL counts.

Third, FRPL data are self-reported data. The number of children included in the FRPL count depends on how many families apply for the program. The extent to which school districts and schools reach out and recruit families to apply for the program will affect the number. Because of this factor, the USDA, which administers the school meals programs, has raised concerns about the accuracy of these data. Several data sources, including the eligibility verifications performed by school districts, indicate that a significant number of ineligible children appear to have been certified for free and reduced meals and, therefore, that these data may not be an adequate measure for poverty for other program uses. USDA believes that the authority for school officials to use counts of children eligible for free and reduced-price meals in determining Title I within-district allocations may provide an incentive for those officials to inflate those counts.

Finally, because FRPL are self-reported data, the relationship between census poverty and FRPL is not consistent across geographic areas. Nationally, for example, the number of children eligible for the FRPL in school year 2000-01 among the States ranges from 1.5 to 41 times the number of children who meet the census criteria for poverty.

In conclusion, under the revised and expanded final definition, potentially 58 percent of the LEAs in the country will be considered high-need LEAs. While this percentage of LEAs is not as extensive as the percentage currently considered “high-need LEAs” (approximately 70 percent) under the FRPL standard, it is considerably more than would have qualified under the NPRM (potentially 38 percent). Consequently, the Secretary does not believe that by realigning the definition of high-need LEA with the current statute and thereby providing a reasonable range of choice under this expanded final definition, serious candidates will be dissuaded from a career change to teaching or that the Troops-to-Teachers program will be negatively affected by this final regulation.

Change: The third tier of the definition of “high-need local educational agency” has been expanded so as to apply to an LEA in which 10 percent or more but less than 20 percent of the children served by the agency are from families with incomes below the poverty line and that assigns all teachers receiving financial assistance through the Troops-to-Teachers program to high-need schools. In all other respects, the definition of “high-need LEA” is unchanged; however, a new definition of the term “children from families with incomes below the poverty line” has been added to § 230.2 as the result of interdepartmental review to clarify what data the Secretary uses in applying the “high-need” LEA definition. That new definition is based on the data used by the Department in allocating funds under Title I, Part A of the Act. Thus, the term “children from families with incomes below the poverty line” means the updated Department of Commerce data on the number of children ages 5 through 17 from families with incomes below the poverty line used to allocate funds under Title I, Part A of the Act.

Comment: One commenter stated that § 230.3 should be clarified to specify that a participant can satisfy his or her three-year teaching obligation if he or she teaches in any of the priority categories specified in the regulation.

Discussion: Section 2304 of the Act specifies that service in any high-need LEA or public charter school satisfies a service member's teaching obligation regardless of the priority given to that service member in his or her selection to the program. Which priority is used to select a participant for the program is distinct from how a selected participant satisfies the teaching obligation one assumes upon selection to the program. Service members who teach for three years in a high-need LEA or public charter school (and in a high-need school in the case of bonus recipients) will satisfy their obligation regardless of what priority they were given under § 230.3 in their selection for the program.

Change: None.

Comment: One commenter questioned whether participants will be required to have four-year college degrees including teacher-training classes and questioned the absence of certification requirements in the regulations.

Discussion: Section 2303(c)(2) of the Act provides generally that program participants must have received a baccalaureate or advanced degree except in the case of vocational or technical teachers, who may qualify on the basis of one year of college and six or more years of military experience in a vocational or technical field or otherwise meet State certification or licensing requirements to be a vocational or technical teacher. Generally, teacher certification and licensing is a matter of State law. It would therefore not be appropriate to address that subject in these regulations.

Change: None.

Comment: One commenter suggested that the Secretary establish a policy providing for partial or full repayment where a participant makes a good-faith effort to satisfy his or her commitment but is unable to obtain appropriate employment.

Discussion: It is unnecessary to establish the suggested policy because the Act already contains, in section 2304(f) of the Act, provisions governing the repayment of a stipend or bonus, including partial repayment in appropriate cases, where a participant does not meet his or her obligation. Section 2304(a)(2) of the Act also authorizes the Secretary to waive the three-year service obligation and section 2304(f)(4) of the Act excuses repayment in the event of permanent total disability.

Change: None.

We have reviewed these final regulations in accordance with Executive Order 12866. Under the terms of the order we have assessed the potential costs and benefits of this regulatory action.

The potential costs associated with the final regulations are those resulting from statutory requirements and those we have determined to be necessary for administering this program effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of these final regulations, we have determined that the benefits of the regulations justify the costs.

We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

We summarized the potential costs and benefits of these final regulations in the preamble to the NPRM (70 FR 2584). We include additional discussion of potential costs and benefits in the section of this preamble titled Analysis of Comments and Changes.

These regulations do not contain any information collection requirements.

This program is subject to the requirements of Executive Order 12372 and the regulations in 34 CFR part 79. The objective of the Executive order is to foster an intergovernmental partnership and a strengthened federalism by relying on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

In accordance with the order, we intend this document to provide early notification of the Department's specific plans and actions for this program.

In the NPRM, we requested comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.

Based on the response to the NPRM and on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.

You may view this document, as well as all other Department of Education documents published in the Federal Register , in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/news/fedregister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.

The Secretary of Education has delegated authority to the Assistant Deputy Secretary for Innovation and Improvement to issue these amendments to 34 CFR Chapter II.

The Copyright Office has completed its annual review of Copyright Office regulations, and by this document, adopts amendments to correct non-substantive errors in the text of the regulations.

On November 30, 2004, the President signed into law the Copyright Royalty and Distribution Reform Act of 2004 (“CRDRA”), Pub. L. No. 108-419, 118 Stat. 2341. This Act, which became effective on May 31, 2005, amends the Copyright Act, title 17 of the United States Code, by phasing out the Copyright Royalty Arbitration Panel (“CARP”) system and replacing it with three permanent Copyright Royalty Judges (“CRJs”). Consequently, the CRJs will carry out functions heretofore performed by the CARPs-namely, conducting proceedings to adjust rates paid under certain statutory licenses and to distribute royalties collected under sections 111, 119, and chapter 10, as well as taking in and processing claims to those royalty fees. 17 U.S.C. 801.

On May 31, 2005, the Copyright Royalty Board (“CRB”), the institutional entity within the Library of Congress that houses the CRJs, published procedural regulations which govern, in pertinent part, the filing of claims. See 70 FR 30901 (May 31, 2005). Therefore, since jurisdiction over the claims to royalty fees collected under sections 111, 119, and chapter 10, now lies with the CRJs, the corresponding CARP regulations are no longer needed and therefore are being removed.

In consideration of the foregoing and pursuant to 17 U.S.C. 702, the Copyright Office amends chapter II of title 37 of the Code of Federal Regulations by removing parts 252, 257, and 259.

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

On August 13, 1999, EPA approved South Coast Air Quality Management District (SCAQMD or District) Rule 1171, Solvent Cleaning Operations, as a revision to the South Coast portion of the California SIP. See 64 FR 44134 (August 13, 1999). On October 8, 1999, SCAQMD adopted revisions to Rule 1171. In adopting the revisions to Rule 1171 on October 8, 1999, SCAQMD intended the revised rule, excluding the July 1, 2005 VOC limits specified in subsection (c)(1) of the rule, to be submitted by the California Air Resources Board (CARB) to EPA for approval as a SIP revision, and SCAQMD also committed to submitting a future SIP revision containing the July 1, 2005 VOC limits after the District has reviewed the Technology Assessments pursuant to section (d) of the rule unless SCAQMD by majority vote schedules a hearing to consider amending such limits.

On January 21, 2000, CARB submitted the revised SCAQMD Rule 1171, as adopted by SCAQMD on October 8, 1999, to EPA for approval as a revision to the South Coast portion of the California SIP. This submittal specified that the entire revised Rule 1171 was to be included in the SIP, except for the July 1, 2005 VOC limits specified in subsection (c)(1) of the rule. EPA did not take action on this submittal and considered the January 21, 2000 submittal of Rule 1171 superseded when EPA acted on subsequent submittals of further revised versions of the rule.

When SCAQMD subsequently revised Rule 1171 on August 2, 2002 and November 7, 2003, the District again intended that the 2005 limits not be included into the federally enforceable SIP. However, the corresponding submissions of these revisions from CARB on December 23, 2002 and January 15, 2004, respectively, did not clearly repeat the stipulation that the July 1, 2005 VOC limits were not to be included in the SIP. Therefore, when EPA approved these versions of Rule 1171 into the SIP, the 2005 limits were inadvertently approved into the SIP as well. See 68 FR 33005 (June 3, 2003) and 69 FR 44599 (July 27, 2004).

Earlier this year, SCAQMD brought this error to the attention of CARB and EPA, and SCAQMD submitted a letter dated May 6, 2005 to CARB requesting that CARB request corrective action by EPA to resolve this issue. By letter dated May 24, 2005, CARB submitted a letter to EPA withdrawing the July 1, 2005 VOC limits in SCAQMD Rule 1171 from the California SIP consistent with the District's intent on adopting revisions to the rule on October 8, 1999, August 2, 2002, and November 7, 2003. SCAQMD's May 6, 2005 letter and CARB's May 24, 2005 letter are included in the docket for this rulemaking. We agree with SCAQMD and CARB that a SIP correction action is warranted under these circumstances.

Section 110(k)(6) of the Clean Air Act (CAA or Act) provides, “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State.”

For the reasons described above, EPA has determined that the provision listed in the table below was previously approved into the SIP in error. The table below also provides the dates on which the relevant versions of Rule 1171 were submitted by the State and then approved by EPA. We are deleting the specified provision from the SCAQMD's portion of the California SIP under CAA section 110(k)(6).

EPA has reviewed the SIP submittal materials related to the provision listed in the table above and determined that it was previously approved into the applicable California SIP in error. Therefore, EPA is taking action to delete this provision under section 110(k)(6) of the Act, which provides EPA authority to remove this provision without additional State submission. All of the other provisions in SCAQMD Rule 1171, i.e. , other than the July 1, 2005 VOC limits in subsection (c)(1), remain federally enforceable as of the effective dates of EPA's final rules published on August 13, 1999, June 3, 2003, and July 27, 2004 and are unaffected by this correction action.

We do not think anyone will object to this deletion, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing deletion of this same provision. If we receive adverse comments by August 1, 2005, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on August 30, 2005. This will incorporate this correction into the federally enforceable SIP.

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 deletes a provision that had been approved by EPA in error and imposes no additional requirements. 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 deletes a provision that had been approved by EPA in error and does not impose any additional enforceable duty, 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 deletes a provision that had been approved by EPA in error, 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 as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this rule present a disproportionate risk to children.

This rule does not involve establishment of technical standards, and 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 August 30, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document wherever “we,” “us,” or “our” are used we mean EPA.

This action applies to a single source, Flint Hills Resources, L.P., whose facility is located in Dakota County, Minnesota.

1. The Regional Office has established an electronic public rulemaking file available for inspection at RME under ID No. R05-OAR-2005-MN-0002, and a hard copy file which is available for inspection at the Regional Office. The official public file consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public rulemaking file does not include CBI or other information whose disclosure is restricted by statute. The official public rulemaking file is the collection of materials that is available for public viewing at the Air Programs Branch, Air and Radiation Division, EPA Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.

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

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

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate rulemaking identification number by including the text “Public comment on proposed rulemaking Region 5 Air Docket R05-OAR-2005-MN-0002” in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

For detailed instructions on submitting public comments and on what to consider as you prepare your comments see the ADDRESSES section and the section I General Information of the SUPPLEMENTARY INFORMATION section of the related proposed rule which is published in the Proposed Rules section of this Federal Register .

EPA is approving revisions to the Minnesota sulfur dioxide SIP for the Flint Hills refinery. Flint Hills is installing equipment to begin producing ultra low sulfur diesel fuel. It is adding a Hydrocracker Charge Heater (unit 29H-1), a Hydrocracker Fractionator Heater (29H-2), a charge heater for the #4 Hydrogen Plant (30H-1), an emergency diesel generator (EE-29-401), and an emergency diesel powered cooling water pump (81P 450) to its refinery.

The new sources at the refinery are for the production of ultra low sulfur diesel fuel. Operation of the five additional sources could increase the SO 2 emissions by 125.7 tons per year (TPY).

Flint Hills conducted air dispersion modeling to assess the effect of its proposed new equipment and operating plan on ambient air quality. The modelers used the ISCST3 dispersion model in the regulatory default mode, with five years of meteorological data from the Minneapolis-St. Paul International Airport. The SO 2 emissions from other nearby companies were included. When the modeling was performed, Flint Hills had not finalized the locations of the new boilers and heaters. It modeled the new sources concurrently at three potential locations, with each source at its full emission rate. The modeled results are more conservative because of this multiple counting. Flint Hills' proposed revisions include an option of reducing the firing duty of some existing heaters and boilers. To conservatively account for this possibility, the modeling included those boilers and heaters at their current SO 2 emission rates, but at reduced stack exit velocities representative of their new usage scenario. This rulemaking action concerns only the new sources for producing ultra-low sulfur diesel. The modeling also includes the impacts from portable diesel equipment. The sulfur dioxide emissions from these sources were combined and modeled as from an representative average engine located near the facility fence line, where previous modeling analyses had shown high ambient impacts to occur. This also should produce a conservative result. The final results of the Flint Hills modeling, including background SO 2 concentrations, were below the 3-hour, 24-hour, and annual SO 2 NAAQS. The maximum predicted SO 2 concentrations, the modeled plus background concentrations, are 242 μg/m 3 compared to the 365 μg/m 3 24-hour standard and 45 μg/m 3 compared to the 80 μg/m 3 annual standard. The maximum predicted 3-hour SO 2 concentration of 688 μg/m 3 is below the secondary standard of 1300 μg/m 3 .

Sulfur dioxide causes breathing difficulties and aggravation of existing cardiovascular disease. It is also a precursor of acid rain and fine particulate matter formation. Sulfate particles are a major cause of visibility impairment in America. Acid rain damages lakes and streams impairing aquatic life and causes damage to buildings, sculptures, statues, and monuments. Sulfur dioxide also causes the loss of chloroform leading to vegetation damage.

The addition of the new sources causes this revision to result in a higher sulfur dioxide emissions. The effects of the increased emissions were analyzed. Analysis showed that the maximum predicted SO 2 concentrations are below the primary and secondary air quality standards. This indicates that public health and welfare in Dakota County, Minnesota should be protected.

EPA is approving, through direct final rulemaking, revisions to sulfur dioxide emissions regulations for Flint Hills Resources, L.P. of Dakota County, Minnesota.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective August 30, 2005 without further notice unless we receive relevant adverse written comments by August 1, 2005. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective August 30, 2005.

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.

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” 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 (59 FR 22951, 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 August 30, 2005.

Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, wherever “we” or “our” is used it means the EPA.

Section 553 of the Administrative Procedures Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting erroneous text in previous rulemakings. Thus notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

On July 22, 2003 (68 FR 43316), we approved the Fort Collins Carbon Monoxide Redesignation to Attainment and Related Revisions submitted by the Governor of Colorado on August 9, 2002. In this action, we also approved revisions to Regulation No. 13, “Oxygenated Fuels Program.” We inadvertently submitted a sentence and a paragraph from Regulation No. 13 for incorporation by reference into the SIP. Therefore, we are correcting this error by resubmitting the incorporation by reference material in 40 CFR 52.320(c)(99)(i)(B) to the Air and Radiation Docket and Information Center and the Office of the Federal Register. We also inadvertently included the sentence and paragraph in the regulatory text at 40 CFR 52.320(c)(99)(i)(B). We are correcting the regulatory text to indicate that the sentence and paragraph are not in the SIP. Regulation No. 13 includes a sentence and a paragraph that are State only regulations, and should not be included in the SIP. Therefore, the last sentence in Section II.C.1.c.v. of Regulation No. 13: “This Section II.C.1.c.v. is repealed effective February 1, 2019 and is replaced by the requirements in Section II.C.1.c.vi. below beginning November 1, 2019.,” and Section II.C.1.c.vi. of Regulation No. 13: “Effective November 1, 2019, the minimum oxygen content by weight shall be at least 2.7% from November 1 through the end of the Oxygenated Gasoline Control Period as defined in Section II.B. The average oxygen content by weight shall be at least 3.1% from November 1 through February 7. This Section II.C.1.c.vi. shall be a state only regulation, and shall not be included in the State Implementation Plan.” are being removed from the SIP.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4, 109 Stat. 48 (1995)). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This technical correction action does not involve technical standards; 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). EPA's compliance with these statutes and Executive Orders for the underlying rules are discussed in the July 22, 2003 rule approving Colorado's Carbon Monoxide Redesignation Request and Related Revisions for Fort Collins.

The Congressional Review Act (CRA) (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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of August 1, 2005. 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 . These corrections to the identification of plan for Utah is not a “major rule” as defined by 5 U.S.C. 804(2).

Throughout this document wherever “we,” “us” or “our” are used, we mean EPA.

EPA is taking direct final action to approve the Limited Maintenance Plan (LMP) for the Spokane nonattainment area (Spokane NAA) and concurrently redesignate the Spokane NAA to attainment for the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10). Also in this action, EPA is approving the remaining portions of the moderate area State Implementation Plan (SIP) for windblown dust sources that were deferred in EPA's approval of the Spokane PM10 NAA moderate area plan in 1997. See 62 FR 3800. (January 27, 1997). See also 66 FR 27055. (May 16, 2001). Spokane attained the PM10 NAAQS in 1994 and there have been no violations of the PM10 NAAQS in Spokane since 1993. Also in this action, EPA is approving revisions to the Spokane County Air Pollution Control Authority (SCAPCA) Regulatory Orders #96-03, #96-05, and #96-06 for PM10 at the Kaiser-Trentwood facility.

The Spokane PM10 nonattainment area (Spokane NAA) is a roughly rectangular area covering approximately 599 square kilometers in eastern Washington. The Spokane NAA encompasses the metropolitan area of Spokane and some surrounding sections of Spokane County. For a legal description of the boundaries see 40 CFR 81.348. The Spokane NAA lies in a broad, flat valley transversed by the Spokane and Little Spokane rivers. All major point sources (i.e. industrial sources) of PM10 in Spokane County as well as 81 percent of the county's residences lie within the NAA. In general, Spokane has a mild, arid climate in summer and a cold, moist climate in winter. The nonattainment area is characterized by significant terrain elevation changes which may affect dispersion.

Dust storms originating in the Columbia Plateau have contributed to exceedences of the PM10 NAAQS and elevated PM10 levels in the Spokane NAA. The Spokane NAA lies at the northeastern edge of the Columbia Plateau and is impacted by seasonal high winds from the south and southwest, which move dust from the approximate 12.1 million acres of agricultural lands and grasslands on the semi-arid plateau to downwind areas. A 1992 report entitled “An Analysis of the Impact of Biogenic PM10 Sources on the Spokane PM10 Nonattainment Area, February 1992”, estimated gross annual emissions from anthropogenic and nonanthropogenic sources of PM10 in eastern Washington as 40% and 60% respectively.

Washington submitted a complete emissions inventory for the calendar year 2002 with the Limited Maintenance Plan, and summarized current significant contributors to daily emissions as fugitive dust from unpaved roads (49%), residential wood combustion (24%), fugitive dust from construction (6%), paved roads (3%) and emissions from land clearing debris burning (3%). In 2002, all other source categories contributed 2% or less to daily emissions of PM10.

The Spokane, Washington area was designated nonattainment for PM10 and classified as moderate under sections 107(d)(4)(B) and 188(a) of the Clean Air Act upon enactment of the Clean Air Act Amendments of 1990. See 56 FR 56694 (November 6, 1991). States containing initial moderate PM10 nonattainment areas were required to submit, by November 15, 1991, a moderate nonattainment area SIP that, among other requirements, implemented reasonably available control measures (RACM) by December 10, 1993, and demonstrated whether it was practicable to attain the PM10 NAAQS by December 31, 1994. See generally 57 FR 13498 (April 16, 1992); see also 57 FR 18070 (April 28, 1992).

Washington submitted a SIP for the Spokane area on November 15, 1991, followed by addendums on January 31, 1992, December 9, 1994, and May 18, 1995. The December 1994 addendum included a detailed technical analysis indicating that nonanthropogenic sources may be significant in the Spokane PM10 nonattainment area during windblown dust events. In 1997, based on our review of the State's submissions, we approved the PM10 emissions inventory, control measures in the SIP as meeting RACM/RACT, quantitative milestone and reasonable further progress requirements, and contingency measures for all sources of PM10 other than windblown dust. See 62 FR 3800 (January 27, 1997). Under section 188(f) of the Act, EPA deferred action on the attainment demonstration, emissions inventory, control measures and contingency measures for windblown dust sources in the Spokane NAA to provide the State with more time to further evaluate windblown dust events in the Spokane NAA. In this action, we are approving these remaining requirements for windblown dust.

In the same action, EPA approved regulatory orders for the Kaiser-Trentwood aluminum facility to provide consistency between the 1994 emissions inventory and allowable emissions for the facility. See 62 FR 3800 (January 27, 1997). SCAPCA Order #91-01 provided for the use of an alternate opacity limit for the Kaiser-Trentwood aluminum facility. SCAPCA Order #96-03, Order #96-04, Order #96-05 and Order #96-06 significantly lowered the allowable emissions from the facility. These new allowable emissions limits are equivalent to Kaiser facility emissions in the 1994 emissions inventory used in the attainment demonstration.

On September 24, 2001, EPA published a Federal Register notice with its determination, based on air quality data for the years 1995-1997, that the Spokane NAA had attained the NAAQS for PM10 by the extended attainment date of December 31, 1997. See 66 FR 48808.

On November 30, 2004, Washington submitted a Limited Maintenance Plan for the Spokane NAA for approval and requested that EPA redesignate the Spokane NAA to attainment for the National Ambient Air Quality Standards (NAAQS) for PM10. In this action, EPA is approving the Limited Maintenance Plan (LMP) for the Spokane NAA in Washington and granting the request by the State to redesignate the area from nonattainment to attainment for PM10. As stated above, we are also approving the remaining moderate area plan requirements for windblown dust.

Nonattainment areas can be redesignated to attainment after the area has measured air quality data showing it has attained the NAAQS and when certain planning requirements are met. Section 107(d)(3)(E) of the Clean Air Act (the Act), and the General Preamble to Title I provide the criteria for redesignation. See 57 FR 13498 (April 16, 1992). These criteria are further clarified in a policy and guidance memorandum from John Calcagni, Director, Air Quality Management Division, EPA Office of Air Quality Planning and Standards dated September 4, 1992, “Procedures for Processing Requests to Redesignate Areas to Attainment”. The criteria for redesignation are:

(1) The Administrator has determined that the area has attained the applicable NAAQS;

(2) The Administrator has fully approved the applicable SIP for the area under section 110(k) of the Act;

(3) The state containing the area has met all requirements applicable to the area under section 110 and part D of the Act;

(4) The Administrator has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions; and

(5) The Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the Act.

On August 9, 2001, EPA issued guidance on streamlined maintenance plan provisions for certain moderate PM10 nonattainment areas seeking redesignation to attainment (Memo from Lydia Wegman, Director, Air Quality Standards and Strategies Division, entitled “Limited Maintenance Plan Option for Moderate PM10 Nonattainment Areas”, (hereafter the LMP Option memo)). The LMP Option memo contains a statistical demonstration that areas meeting certain air quality criteria will, with a high degree of probability, maintain the standard 10 years into the future. Thus, EPA has already provided the maintenance demonstration for areas meeting the criteria outlined in the LMP Option memo. It follows that future year emission inventories for these areas, and some of the standard analyses to determine transportation conformity with the SIP are no longer necessary.

To qualify for the LMP Option, the area should have attained the PM10 NAAQS, the average annual PM10 design value for the area, based upon the most recent 5 years of air quality data at all monitors in the area, should be at or below 40 μg/m 3 , and the 24 hour design value should be at or below 98 μg/m 3 . If an area cannot meet this test, it may still be able to qualify for the LMP Option if the average design value (ADV) for the site is less than the site-specific critical design values (CDV). In addition, the area should expect only limited growth in on-road motor vehicle PM10 emissions (including fugitive dust) and should have passed a motor vehicle regional emissions analysis test. The LMP Option memo also identifies core provisions that must be included in the LMP. These provisions include an attainment year emissions inventory, assurance of continued operation of an EPA-approved air quality monitoring network, and contingency provisions.

The transportation conformity rule (40 CFR parts 51 and 93) and the general conformity rule (40 CFR parts 51 and 93) apply to nonattainment areas and maintenance areas covered by an approved maintenance plan. Under either conformity rule, an acceptable method of demonstrating that a Federal action conforms to the applicable SIP is to demonstrate that expected emissions from the planned action are consistent with the emissions budget for the area.

While EPA's Limited Maintenance Plan Option does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting an emissions budget. Under the Limited Maintenance Plan Option, emissions budgets are treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that the qualifying areas would experience so much growth in that period that a violation of the PM10 NAAQS would result. For transportation conformity purposes, EPA would conclude that emissions in these areas need not be capped for the maintenance period and therefore a regional emissions analysis would not be required. Similarly, Federal actions subject to the general conformity rule could be considered to satisfy the “budget test” specified in 40 CFR 93.158(a)(5)(i)(A) for the same reasons that the budgets are essentially considered to be unlimited.

There are two separate NAAQS for PM10, an annual standard of 50 μg/m3 and a 24-hour standard of 150 μg/m3. States must demonstrate that an area has attained the PM10 NAAQS through analysis of ambient air quality data from an ambient air monitoring network representing peak PM10 concentrations. The data should be stored in the EPA Air Quality System (AQS) database. As stated in section II.C. of this document, EPA determined that the Spokane NAA attained the PM10 NAAQS based on monitoring data from the calendar years 1995-1997. See 66 FR 48808 (September 24, 2001). Currently, the area is in compliance with both of the PM10 NAAQS.

Since 1997, exceedences of the 24-hour standard occurred on September 25, 1999 and September 25, 2001. Both of these exceedences were flagged by the State as due to high wind events under EPA's Natural Events Policy. Based on the information provided by Washington about these events, other information provided by Washington regarding control measures being implemented at the time of the events, and the area's soil and climate characteristics, we conclude that the exceedences that occurred on September 25, 1999 and September 25, 2001 were due to high wind natural events and that, on those dates, anthropogenic sources contributing to the exceedences were controlled with Best Available Control Measures (BACM). See memorandum entitled “Assessment of Natural Even Claims for Exceedences on September 25, 1999, and September 25, 2001 in Spokane, Washington” in the Technical Support Document for this action. Therefore, EPA is excluding the exceedences from September 25, 1999 and September 25, 2001 from consideration in determining whether the area is currently attaining the PM10 NAAQS and in calculating design values for the Limited Maintenance Plan. The area continues to attain the 24-hour and annual PM10 NAAQS.

In order to qualify for redesignation, the SIP for the area must be fully approved under section 110(k) of the Act, and must satisfy all requirements that apply to the area. Section 107(d)(4)(B) of the Clean Air Act contains requirements and milestones for all initial moderate nonattainment area SIPs including:

(1) Provisions to assure that reasonably available control measures (RACM) (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology—RACT) shall be implemented no later than December 10, 1993;

(2) A demonstration (including air quality modeling) that the plan will provide for attainment as expeditiously as practicable by no later than December 31, 1994 or, where the state is seeking an extension of the attainment date under section 188(e), a demonstration that attainment by December 31, 1994 is impracticable and that the plan provides for attainment by the most expeditious alternative date practicable (CAA sections 189(a)(1)(A));

(3) Quantitative milestones which are to be achieved every three years and which demonstrate reasonable further progress (RFP) toward attainment by December 31, 1994 (CAA sections 172(c)(2) and 189(c)); and

(4) Contingency measures to be implemented if the area fails to make RFP or attain by its attainment deadline. These contingency measures are to take effect without further action by the State or EPA. (CAA section 172(c)(9)).

As stated above, on January 27, 1997, EPA approved Spokane's moderate area plan including RACT/RACM for all PM10 sources except for windblown dust and under section 188(f) of the Act, deferred action on the attainment demonstration, emissions inventory, quantitative milestones, control measures and contingency measures for windblown dust sources. See 62 FR 3800. In this action, EPA is approving the area as meeting RACM for windblown dust sources based on the implementation of BACM to control windblown dust originating from the Columbia Plateau. EPA generally interprets the BACM requirement as subsuming the RACM requirement. In other words, if we determine that the measures are indeed the “best available,” we have necessarily concluded that they are “reasonably available”. As stated above in section IV.A., EPA concludes that BACM is implemented for windblown dust from agriculture on the Columbia Plateau.

The remaining attainment demonstration, emissions inventory, quantitative milestone, and control and contingency measure requirements must be met for all PM10 sources for an approvable moderate area plan. EPA believes that quantitative milestones and contingency measures are no longer required in the Spokane NAA since both of these requirements relate to the applicable attainment date, and EPA determined that the area attained the PM10 NAAQS by December 31, 1997. We believe that Spokane meets all of the remaining requirements for moderate area plans including control measures for windblown dust sources, the attainment demonstration, and emissions inventory by meeting the requirements for the Limited Maintenance Plan.

The Limited Maintenance Plan contains a detailed emissions inventory for all sources of PM10 for the calendar year 2002 including an inventory of windblown dust. The Limited Maintenance Plan also contains control measures that address windblown dust among other sources of PM10. We refer the reader to sections IV.C., and IV.D., respectively for further discussion on the emissions inventory, and control measures requirements for all sources of PM10 in the Spokane NAA.

As previously stated, the fully approved SIP must contain an attainment demonstration (including air quality modeling) that the plan will provide for attainment by the applicable attainment date. As noted above, Spokane attained the PM10 NAAQS by the applicable attainment date (December 31, 1997) based on monitoring data from the calendar years 1995-1997. See 66 FR 48808 (September 24, 2001). However, EPA has not previously fully approved the State's attainment demonstration for Spokane.

In this action, EPA concludes that the statistical demonstration of maintenance submitted with the Limited Maintenance Plan fulfills the attainment demonstration requirement. Generally, EPA recommends that attainment be demonstrated according to the PM-10 SIP Development Guideline (June 1987), which presents three methods based on Federal regulations. Federal regulations require demonstration of attainment “by means of a proportional model or dispersion model or other procedure which is shown to be adequate and appropriate for such purposes.” See 40 CFR 51.112. See also 62 FR 18051 (April 14, 1997). EPA believes that it is reasonable to accept the Limited Maintenance Plan demonstration as an adequate attainment demonstration since this maintenance demonstration ensures maintenance of the PM10 NAAQS for ten years from the effective date of this action. Section IV.F. of this notice contains a description of the maintenance demonstration included with the Limited Maintenance Plan. In this action, EPA is finding the maintenance demonstration criteria outlined in the Limited LMP Option are satisfied. Accordingly, EPA is approving the remaining moderate area plan requirements for the Spokane NAA; the attainment demonstration, emissions inventory and control methods for all sources, including windblown dust. Thus, upon the effective date of this action, the Spokane NAA will have a fully approved moderate area plan.

Section 107(d)(3)(E) of the Act requires that a state containing a nonattainment area must meet all applicable requirements under section 110 and Part D of the Act for an area to be redesignated to attainment. EPA interprets this to mean that the state must meet all requirements that applied to the area prior to, and at the time of, the submission of a complete redesignation request. The following is a summary of how Washington meets these requirements.

Section 110(a)(2) of the Act contains general requirements for nonattainment plans. These requirements include, but are not limited to, submittal of a SIP that has been adopted by the state after reasonable notice and public hearing; provisions for establishment and operation of appropriate apparatus, methods, systems and procedures necessary to monitor ambient air quality; implementation of a permit program; provisions for Part C—Prevention of Significant Deterioration (PSD) and Part D—New Source Review (NSR) permit programs; criteria for stationary source emission control measures, monitoring and reporting, provisions for modeling; and provisions for public and local agency participation. See the General Preamble for further explanation of these requirements. 57 FR 13498 (April 16, 1992).

For purposes of redesignation, EPA review of the Washington SIP shows that the State has satisfied all requirements under section 110(a)(2) of the Act. Further, in 40 CFR 52.2473, EPA has approved Washington's plan for the attainment and maintenance of the national standards under Section 110.

Part D contains general requirements applicable to all areas designated nonattainment. The general requirements are followed by a series of subparts specific to each pollutant. All PM10 nonattainment areas must meet the general provisions of Subpart 1 and the specific PM10 provisions in Subpart 4, “Additional Provisions for Particulate Matter Nonattainment Areas.” The following paragraphs discuss these requirements as they apply to the Spokane NAA.

Subpart 1, section 172(c) contains general requirements for nonattainment area plans. A thorough discussion of these requirements may be found in the General Preamble. See 57 FR 13538 (April 16, 1992). Clean Air Act (CAA) section 172(c)(2) requires nonattainment plans to provide for reasonable further progress (RFP). Section 171(1) of the CAA defines RFP as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part (part D of title I) or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” Since EPA determined that the Spokane NAA was in attainment of the PM10 NAAQS by 1997, we believe that no further showing of RFP or quantitative milestones is necessary. See 66 FR 48808 (September 24, 2001).

Section 172(c)(3) of the Act requires a comprehensive, accurate, current inventory of actual emissions from all sources in the Spokane PM10 nonattainment area. Washington included an emissions inventory for the calendar year 2002 with its submittal of the LMP for the Spokane NAA. Based on the inventory preparation plan for the PM10 2002 base year emissions inventory, which includes windblown dust sources, EPA believes that the 2002 base year emissions inventory is current, accurate and comprehensive and therefore meets the requirements of Section 172(c)(3) of the Act.

The Clean Air Act Amendments of 1990 contained revisions to the New Source Review (NSR) program requirements for the construction and operation of new and modified major stationary sources located in nonattainment areas. The Act requires states to amend their SIPS to reflect these revisions, but does not require submittal of this element along with the other SIP elements. The Act established June 30, 1992 as the submittal date for the revised NSR programs (Section 189 of the Act). The Part D NSR rules for PM10 nonattainment areas in Washington were approved by EPA on June 2, 1995. See 60 FR 28726. In the Spokane NAA, the requirements of the Part D NSR program will be replaced by the Prevention of Significant Deterioration (PSD) program and the maintenance area NSR program upon effective date of redesignation. The Federal PSD regulations found at 40 CFR 52.21 are the PSD rules in effect for Washington. See 40 CFR 52.2497.

Once an area is redesignated, the state must continue to operate an appropriate air monitoring network in accord with 40 CFR part 58 to verify attainment status of the area. The State of Washington and Spokane County Air Pollution Authority (SCAPCA) operate two PM10 and PM2.5 State and Local Air Monitoring Stations (SLAMS) in the Spokane NAA. Both monitoring sites meet EPA SLAMS network design and siting requirements set forth at 40 CFR part 58, appendices D and E, and have been monitoring for PM10 since 1995. In section D of the Limited Maintenance Plan that we are approving today, the State commits to continued operation of the monitoring network.

The Clean Air Act requires that contingency measures take effect if the area fails to meet reasonable further progress requirements or fails to attain the NAAQS by the applicable attainment date. Since the Spokane NAA attained the NAAQS for PM10 by the applicable attainment date of December 31, 1997, contingency measures are no longer required under Section 172(c)(9) of the Act. However, contingency provisions are required for maintenance plans under Section 175(a)(d). We describe the contingency provisions Washington provided in the Spokane LMP below.

Part D Subpart 4, Section 189(a), (c) and (e) requirements apply to any moderate nonattainment area before the area can be redesignated to attainment. The requirements which were applicable prior to the submission of the request to redesignate the area must be fully approved into the SIP before redesignating the area to attainment. These requirements include:

(a) Provisions to assure that RACM was implemented by December 10, 1993;

(b) Either a demonstration that the plan provided for attainment as expeditiously as practicable but not later than December 31, 1994, or a demonstration that attainment by that date was impracticable;

(c) Quantitative milestones which were achieved every 3 years and which demonstrate reasonable further progress (RFP) toward attainment by December 31, 1994; and

(d) Provisions to assure that the control requirements applicable to major stationary sources of PM10 also apply to major stationary sources of PM10 precursors except where the Administrator determined that such sources do not contribute significantly to PM10 levels which exceed the NAAQS in the area.

These provisions, with the exception of the attainment demonstration and quantitative milestones were fully approved into the SIP upon EPA approval of the PM10 moderate area plan for the Spokane NAA on January 27, 1997. See 62 FR 3800. As discussed above, the requirements for reasonable further progress were satisfied with the September 24, 2001 finding of attainment (66 FR 48808), and EPA is approving the attainment demonstration, based on the maintenance demonstration submitted with the Limited Maintenance Plan, in this action.

The state must be able to reasonably attribute the improvement in air quality to permanent and enforceable emission reductions. In making this showing, the state must demonstrate that air quality improvements are the result of actual enforceable emission reductions. This showing should consider emission rates, production capacities, and other related information. The analysis should assume that sources are operating at permitted levels (or historic peak levels) unless evidence is presented that such an assumption is unrealistic.

Permanent and enforceable control measures in the Spokane NAA SIP include RACM and BACM. Emission sources in the Spokane NAA have been implementing RACM for at least 10 years. Table 1 contains a list of RACM implemented in Spokane. These control measures were approved into the SIP, and they are both permanent and federally enforceable. See 62 FR 3800 (January 27, 1997).

As discussed in section IV.A., Best Available Control Measures (BACM) are in place to control wind blown dust from the Columbia Plateau. Based on the 2003 NEAP and the 2004 status report submitted to EPA by the Washington Department of Ecology, EPA has determined that Spokane meets the BACM requirement for agricultural sources within the Columbia Plateau. See the technical support document for this action for a discussion on BACM for agricultural sources within the Columbia Plateau.

There are two major stationary sources within the Spokane NAA, the Kaiser Aluminum facilities at Trentwood and Mead. These have not been evaluated specifically for RACT by either Washington or the Spokane County Air Pollution Control Authority (SCAPCA) since analysis of the 24-hour PM10 problem indicates that industrial sources are not a major contributor. See 61 FR 36001 (July 9, 1996). Although analysis indicates that neither of the Kaiser Aluminum facilities are major contributors to 24-hour PM10 past or future exceedences, SCAPCA issued regulatory orders for the Kaiser-Trentwood facility under WAC 173-400-091 “Voluntary Limits on Emissions.” SCAPCA orders #96-03, #96-04, #96-05, and #96-06 lower the potential to emit and #91-01 establishes an alternate opacity limit. These orders were adopted into the SIP on January 27, 1997 (62 FR 3800), and EPA is approving revisions to regulatory orders #96-03, #96-05, and #96-06 with this action.

Finally, EPA believes that areas that qualify for the LMP will meet the NAAQS, even under worst case meteorological conditions. Under the Limited Maintenance Plan policy, the maintenance demonstration is presumed to be satisfied if an area meets the qualifying criteria. Thus, by qualifying for the Limited Maintenance Plan, Washington has demonstrated that the air quality improvements in the Spokane area are the result of permanent emission reductions and not a result of either economic trends or meteorology. A description of the LMP qualifying criteria and how the Spokane area meets these criteria is provided in the following section.

In this action, we are approving the Limited Maintenance Plan in accordance with the principles outlined in the LMP Option. Upon the effective date of this action, the area will have a fully approved maintenance plan.

The LMP Option memo outlines the requirements for an area to qualify for the LMP Option. First, the area should be attaining the NAAQS. As stated above in Section IV.A., EPA has determined that the Spokane NAA has been in attainment of the PM10 NAAQS since 1997 and continues to meet the PM10 NAAQS for the period 1998-2002.

Second, the average design value (ADV) for the past 5 years of monitoring data must be at or below the critical design value (CDV). The CDV is a margin of safety value and is the value at which an area has been determined to have a 1 in 10 probability of exceeding the NAAQS. The LMP Option memo provides two methods for review of monitoring data for the purpose of qualifying for the LMP option. The first method is a comparison of a site's ADV with the CDV of 98 μg/m 3 for the 24-hour PM10 NAAQS and 40 μg/m 3 for the annual PM10 NAAQS. A second method that applies to the 24-hour PM10 NAAQS is the calculation of a site-specific CDV and a comparison of the site-specific CDV with the ADV for the past 5 years of monitoring data.

The ADV for the 24-hour PM10 NAAQS for Spokane, based on data from the Crown Zellerbach monitor for the years 1998-2002, is 110.7. This value falls below the site-specific 24-hour CDV of 116.6 μg/m 3 . The annual ADV from the Crown Zellerbach monitor for the same period is 28.2 μg/m 3 . This falls below the annual CDV provided in the LMP Option memo of 40 μg/m 3 . Therefore, Spokane meets the design value criteria outlined in the LMP Option memo. For the 1998-2002 ADV and 1993-2003 site-specific CDV calculations for PM10 in Spokane, please see the technical support document, Attachment H.

Third, the area must meet the motor vehicle regional emissions analysis test in attachment B of the LMP Option memo. Using the methodology outlined in the memo, based on monitoring data for the period 1998-2002, EPA has determined that the Spokane NAA passes the motor vehicle regional emissions analysis test. For the calculations used to determine that Spokane has passed the motor vehicle regional analysis test, see the technical support document, Attachment H.

The monitoring data for the period 1998-2002 shows that Spokane has attained the NAAQS for PM10, the 24-hour ADV and the annual ADV in Spokane are less than the site specific 24-hour PM10 CDV and the national annual CDV respectively. Finally, the area has met the regional vehicle emissions analysis test. Thus, the Spokane NAA area qualifies for the Limited Maintenance Plan option described in the LMP Option memo.

The LMP Option memo also indicates that once a state selects the LMP Option and it is in effect, the state will be expected to determine, on an annual basis, that the LMP criteria are still being met. If the state determines that the LMP criteria are not being met, it should take action to reduce PM10 concentrations enough to requalify for the LMP. One possible approach the State could take is to implement contingency measures. In section E of the Limited Maintenance Plan, Washington commits to evaluate, on an annual basis, the LMP criteria for the Spokane NAA.

For these reasons and reasons explained below, we are approving the LMP for the Spokane NAA and the State's request to redesignate the Spokane NAA from nonattainment to attainment for PM10.

The state's approved attainment plan should include an emissions inventory (attainment inventory) which can be used to demonstrate attainment of the NAAQS. The inventory should represent emissions during the same five year period associated with air quality data used to determine whether the area meets the applicability requirements of the LMP Option. The state should review its inventory every three years to ensure emissions growth is incorporated in the attainment inventory if necessary. In this instance, Washington completed an attainment year inventory for the attainment year 1997. However, this inventory was not fully approved as it did not include emissions from windblown dust. Washington is now using the emissions inventory for the calendar year 2002 as the attainment year inventory.

EPA has reviewed the 2002 emissions inventory and determined that it is current, accurate and complete. EPA has also reviewed monitoring data for the years 1997-2002, and determined that the 2002 emissions inventory is representative of the attainment year inventory since the NAAQS was not violated during 2002. In addition, the emissions inventory submitted with the Limited Maintenance Plan for the calendar year 2002 is representative of the level of emissions during the time period used to calculate the average design value since 2002 is included in the five year period used to calculate the design value (1998-2002). As stated above in Section IV.C.4., the 2002 emissions inventory meets the requirements of Section 172(c)(3) of the Act, and the requirements for emissions inventory in Table 3.1 of the EPA document entitled PM-10 Emission Inventory Requirements, Final Report.

A PM10 monitoring network was established in the Spokane area in October, 1985. Monitoring sites have been located in nine different locations throughout the area since that time. The monitoring network was developed and has been maintained in accordance with federal siting and design criteria in 40 CFR Part 58, Appendices D and E and in consultation with Region 10. Currently, there are two PM10/PM2.5 SLAMS/NAMS monitors in the Spokane NAA. In section IV.E. of the Spokane LMP, Washington states that it will continue to operate its monitoring network to meet EPA requirements.

Section 175A of the Act states that a maintenance plan must include contingency provisions, as necessary, to promptly correct any violation of the NAAQS which may occur after redesignation of the area to attainment. As explained in the LMP Option memo, these contingency measures do not have to be fully adopted at the time of redesignation.

Section IV.F. of the Spokane Limited Maintenance Plan describes a process and timeline to identify and evaluate appropriate contingency measures in the event of a quality assured violation of the PM10 NAAQS. Within 30 days following a violation of the PM10 NAAQS, the Spokane County Air Pollution Control Authority (SCAPCA), the Spokane Regional Transportation Council (SRTC) and the Washington Department of Ecology will convene an assessment team to identify appropriate measures to be implemented and prepare and deliver a report to the Spokane County Air Pollution Control Authority (SCAPCA) board of directors and appropriate staff at Washington Department of Ecology within 120 days based on:

(1) Monitoring data before and during the event;

(2) Weather conditions that may have caused and/or contributed to the violation;

(3) Normal and unusual emissions occurring prior to and during the event;

(4) Effectiveness of existing controls in reducing the magnitude and/or duration of events;

(5) Appropriateness of modifying and or implementing one or more LMP contingency measures; and

(6) Possible changes to the LMP, monitoring network, and or public information strategies.

The plan describes contingency measures that are already in effect or may automatically become effective in the event of a violation of the NAAQS, subject to the assessment described above. These contingency measures include:

(1) Unpaved Road Control Regulation: This measure, adopted by SCAPCA in 1994 as section 6.15 of Regulation I, controls particulate matter emissions from unpaved surfaces. The measure requires, among other things, that the city of Spokane, Spokane County, and the Town of Millwood submit emission reduction contingency plans for the control of dust emissions from unpaved roads and parking lot emissions to SCAPCA for approval. These contingency plans, if determined appropriate, will be reviewed and updated in the event of a NAAQS violation;

(2) Ban on Uncertified Stoves: Article VIII of SCAPCA's Regulation I contains provisions for Solid Fuel Burning Device Standards. As amended on January 6, 1994, it enables SCAPCA to take further residential wood-smoke control actions if the area is not in attainment of the PM10 standard because of wood-smoke emissions.

The regulation prohibits the use of any solid fuel burning device not meeting state certification standards. Implementation of this regulation as a contingency measure will provide a further reduction of wood-smoke emissions, should the assessment, as described above, find it necessary.

The assessment team will also consider recommending other contingency measures that may more appropriately address the most probable source contributing to the violation. The board may adopt and implement contingency measures other than those listed above, as needed. EPA believes that current and proposed contingency measures in Spokane's Limited Maintenance Plan meet the requirements for contingency measures as outlined in the Limited Maintenance Plan Option memo.

Under the LMP Option, emissions budgets are treated as essentially not constraining for the maintenance period because it is unreasonable to expect that qualifying areas would experience so much growth in that period that a NAAQS violation would result.

While areas with maintenance plans approved under the LMP Option are not subject to the budget test, the areas remain subject to other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the State must document and ensure that:

(a) Transportation plans and projects provide for timely implementation of SIP transportation control measures (TCMs) in accordance with 40 CFR 93.113;

(b) Transportation plans and projects comply with the fiscal constraint element per 40 CFR 93.108;

(c) The MPO's interagency consultation procedures meet applicable requirements of 40 CFR 93.105;

(d) Conformity of transportation plans is determined no less frequently than every three years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104;

(e) The latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111;

(f) Projects do not cause or contribute to any new localized carbon monoxide or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and

(g) Project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.

On February 10, 2005, EPA posted a proposal to find the Spokane LMP Motor Vehicle Emissions Budget adequate for transportation conformity purposes on EPA's conformity Web site: http://www.epa.gov/oms/traq . As stated above, Limited Maintenance Plan budgets are unconstrained and consequently, the adequacy review period for these maintenance plans serves to allow the public to comment on whether limited maintenance is appropriate for these areas. Interested parties may comment on the adequacy and approval of the Limited Maintenance Plans by submitting their comments on the proposed rule published concurrently with this direct final rule. The comment period for the adequacy posting for the Spokane LMP ended on March 15, 2005. EPA did not receive any comments on this posting.

For Federal actions which are required to address the specific requirements of the general conformity rule, one set of requirements applies particularly to ensuring that emissions from the action will not cause or contribute to new violations of the NAAQS, exacerbate current violations, or delay timely attainment. One way that this requirement can be met is to demonstrate that “the total of direct and indirect emissions from the action (or portion thereof) is determined and documented by the State agency primarily responsible for the applicable SIP to result in a level of emissions which, together with all other emissions in the nonattainment area, would not exceed the emissions budgets specified in the applicable SIP.” 40 CFR 93.158(a)(5)(i)(A).

The decision about whether to include specific allocations of allowable emissions increases to sources is one made by the State and local air quality agencies. These emissions budgets are different than those used in transportation conformity. Emissions budgets in transportation conformity are required to limit and restrain emissions. Emissions budgets in general conformity allow increases in emissions up to specified levels. Washington has not chosen to include specific emissions allocations for Federal projects that would be subject to the provisions of general conformity.

EPA is incorporating by reference revisions to the following Spokane County Air Pollution Control Authority (SCAPCA) Regulatory Orders: #96-03, effective date October 4, 2000; #96-05, effective date October 4, 2000; and #96-06, effective date October 19, 2000.

EPA is approving the Limited Maintenance Plan (LMP) for the Spokane nonattainment area (Spokane NAA) and redesignating the Spokane NAA to attainment for the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10). EPA is also approving the remaining portions of the moderate area plan (“attainment plan”) for the Spokane NAA for all PM10 sources including windblown dust.

Also in this action, EPA is approving revisions to the Spokane County Air Pollution Control Authority (SCAPCA) Regulatory Orders #96-03, effective date October 4, 2000; #96-05, effective date October 4, 2000; and #96-06, effective date October 19, 2000.

EPA is publishing this action without a prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comments. In the proposed rules section of this Federal Register publication, however, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This direct final rule is effective on August 30, 2005, without further notice, unless EPA receives adverse comment by August 1, 2005. If an adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule did not take effect. All adverse public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 6, 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 August 30, 2005. 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 letter 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.

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

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.

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.

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

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

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 existing starter interlock requirement of Federal Motor Vehicle Safety Standard (FMVSS) No. 102 (at S3.1.3) states “the engine starter shall be inoperative when the transmission shift lever is in a forward or reverse drive position.” The purpose of this requirement is to prevent injuries and death from the unexpected motion of a vehicle when the driver starts the vehicle with the transmission inadvertently in a forward or reverse gear. Two recently introduced vehicles, the Toyota Prius  1 and the Honda Insight  2 , are powered by hybrid/electric systems (the Toyota Hybrid System (THS) and Honda's Idle-stop Technology (IST)) that permit their gasoline engines to stop and restart automatically while the transmission shift lever is in a drive position.

Each manufacturer asked us to interpret S3.1.3 as it applied to these new vehicles. In interpretation letters to Toyota (November 1, 1999) and Honda (January 17, 2001), we concluded that S3.1.3 would not prohibit either system. In each case, we based our interpretation on a determination that the system met S3.1.3's underlying purpose of ensuring that the vehicle will not lurch forward or backward during driver activation of the engine starter because driver activation of the engine starter is inoperative when the transmission shift lever is in a drive position. We also noted that these new systems were more complex than those on vehicles that existed when S3.1.3 was first adopted, and that we planned to conduct rulemaking to clarify FMVSS No. 102 as applied to emerging technologies. Pending completion of the rulemaking, we stated that we would interpret S3.1.3 as requiring that driver activation of the engine starter must be inoperative when the transmission shift lever is in a forward or reverse drive position.

In the NPRM (68 FR 26269, May 15, 2003), we proposed to amend the regulatory text of FMVSS No. 102 to make it clear that the engine may start and stop automatically after the driver has activated the vehicle's propulsion system, when the transmission shift lever is in any forward gear. Under the proposed regulatory text, this was also permitted when the shift lever is in Reverse, but only if the vehicle's propulsion system provides, at least, a minimum creep force in Reverse when the engine is stopped, the accelerator is released and the propulsion system is activated.

After carefully considering the public comments, we have decided to adopt a final rule with some changes from the proposal. This final rule amends S3.1.3 to accommodate these new technologies, while preserving the safety purpose of the standard. Although the creep force requirements proposed in the NPRM are not adopted in the final rule, the final rule addresses the same safety problems in a simpler way.

With respect to vehicles with automatic transmissions, the rule makes it clear that, after activation of the vehicle's propulsion system by the driver, the engine may stop and restart automatically when the transmission shift position is in any forward drive gear. The rule prohibits the engine from automatically stopping in reverse gear. When the engine is automatically stopped in a forward drive shift position and the driver selects Reverse, the engine is permitted to restart automatically in Reverse if two conditions are satisfied. The first condition is that the engine must restart immediately whenever the service brake is applied. The second condition is that the engine does not start automatically if the service brake is not applied.

The rule also provides, notwithstanding these limitations, that the engine may stop and start at any time after the driver has activated the vehicle's propulsion system if: (a) The vehicle's propulsion system can propel the vehicle in the normal travel mode in all forward and reverse drive gears without the engine operating, and (b) if the engine automatically starts while the vehicle is traveling at a steady speed and steady accelerator control setting, the engine does not cause the vehicle to accelerate.

The notice of proposed rulemaking (NPRM) for an amendment to the starter interlock requirement of Federal Motor Vehicle Safety Standard (FMVSS) 571.102 was published on May 15, 2003 (68 FR 26269). We intended the proposed amendment to preserve the original safety intent of the starter interlock requirement while accommodating the technologies used on vehicles such as the Prius and the Insight. With respect to vehicles with automatic transmissions, the agency proposed regulatory text that made it clear that, after activation of the vehicle's propulsion system by the driver, the internal combustion engine (ICE) is permitted to stop and start automatically while the shift position is in any forward drive gear. The agency also proposed regulatory text providing that the ICE is permitted to stop and start automatically while the shift position is in Reverse, but only in vehicles like the Prius that exhibit creep force in forward and reverse drive gears, regardless of whether the ICE is running. This allows the driver to sense what gear the vehicle is in before pressing the accelerator pedal. This creep force is similar to the creep force that exists on conventional (non-hybrid-electric) ICE/automatic transmission equipped vehicles. Creep force occurs in the direction indicated by the selected shift position and provides enough force to cause motion of a vehicle loaded to its GVWR on a level, paved surface before the service brake pedal is completely released. In the NPRM, we stated that creep force is a cue that indicates to the driver that he or she is in the correct gear, as the driver is releasing the brake and has the best chance of stopping quickly in case of a gear selection error. In the NPRM, we also proposed a test for minimum creep force in vehicles that automatically stopped and started its ICE in Reverse.

For a complete discussion of the safety issues that led to proposed changes to FMVSS No. 102, and how NHTSA sought to address these issues, please refer to the notice of proposed rulemaking at 68 FR 26269 (May 15, 2003).

The comment period for the NPRM ended on July 15, 2003.

We received comments from ten sources; Advocates for Highway and Auto Safety (AHAS), American Honda Motor Company (Honda), Ford Motor Company (Ford), Nissan North America, Inc. (Nissan), Association of International Automobile Manufacturers, Inc. (AIAM), International Truck and Engine Corporation (International), DaimlerChrysler Corporation (DaimlerChrysler), New York City Transit (NYCT), Toyota Motor North America, Inc. (Toyota), and Denso International America, Inc. (Denso). The commenters included a consumer advocate, vehicle manufacturers, vehicle manufacturer associations, a city transportation department and manufacturers of controls used in hybrid-electric vehicles.

In general, the comments supported amending FMVSS No. 102 to clarify its requirements and facilitate current and evolving hybrid electric vehicle technologies. However, specific commenters raised a variety of issues relating to creep force and the conditions under which creep force should be present. The issues raised in the public comments, and NHTSA's response to the comments, are discussed below.

Both AHAS and AIAM indicated support for NHTSA's proposal to require reverse creep force in vehicles that allow the ICE to stop and start automatically while the vehicle's shift position is in Reverse. AHAS commended the agency for anticipating a safety problem before it reaches a level where increasing deaths and injuries have been sustained by both vehicle occupants and pedestrians.

Ford and NYCT supported NHTSA's efforts to revise the Federal Motor Vehicle Safety Standards (FMVSS) for starter interlock function in order to address the new hybrid-electric vehicle (HEV) propulsion systems. They indicated concern, however, that the proposed rule appears to assume that creep force will help drivers avoid collisions resulting from shifting errors. Ford and NYCT stated there are no historical or experimental data provided in support of such a proposition. Ford further argued that the new specification requiring a creep force was inserted without any analysis or documentation of the real-world benefit. Ford indicated that vehicles equipped with manual transmissions do not have creep force while standing at idle and that several non-HEV models equipped with automatic transmissions actually have reduced or eliminated idle creep force (for fuel economy purposes) by partially disengaging the transmission or reducing engine speed at idle. Ford further argued that by imposing a minimum creep force requirement on HEVs, NHTSA arbitrarily would hold HEVs to a higher standard than many conventional power trains with automatic transmissions and all power trains with manual transmissions. Ford stated that NHTSA has presented no evidence that a vehicle without creep force is less safe than one with creep force.

Toyota commented that it understands that the agency's purpose in measuring and regulating a creep force to GVWR ratio is to develop a method to measure driver observable movement; however, it believes there are other ways to alert the driver that his or her vehicle is in Reverse, such as an audible alarm. Toyota believes that an audible alarm should be allowed as a substitute for reverse creep force.

In response to the comments from AHAS and AIMA, NHTSA notes that it sought to amend S3.1.3 of FMVSS No. 102 in a way that allows for current and new technology and at the same time does not compromise the original safety intent of FMVSS No. 102.

NHTSA acknowledges the comments from Ford and NYCT regarding creep force. Even though NHTSA continues to consider creep force a valuable cue to the driver, it has concluded that the changes necessary to accommodate these and other comments discussed in this document would make the regulatory language unnecessarily complex. Therefore, NHTSA has developed a refocused approach to differentiate between two types of hybrid-electric vehicles: the electric motor-powered vehicle assisted by an internal combustion engine (ICE) (such as the Prius) and the ICE-powered vehicle assisted by an electric motor and that employs idle-stop technology (such as the Insight).

This final rule establishes requirements that address the same objectives of solving the mis-shift problem before it happens but in a way such that we no longer need to regulate creep force. The changes in this final rule clarify how the starter interlock requirement applies to vehicles with emerging technologies while continuing to address the need for safety. We believe the restriction of idle-stop systems to forward gears is simple and appropriate. We have also lessened restrictions on electric motor-powered vehicles assisted by an ICE, thereby maximizing design freedom where appropriate.

International, a U.S. manufacturer of medium and heavy-duty trucks, school buses and medium duty diesel engines recommended that the proposed changes to the regulation be limited to internal combustion (IC)/electric hybrid vehicles with GVWRs less than 10,000 pounds so the regulation does not inhibit the development of new technology or create an unworkable situation for medium and heavy duty vehicles.

International commented that NHTSA has collected data on light duty hybrid (IC)/electric passenger vehicles, even though the proposed changes would apply to all vehicles. International expressed concern that the proposed changes may not be appropriate for medium and heavy-duty vehicles and there is not enough information or data available at this time on medium and heavy-duty hybrid-electric vehicles (HEVs). International stated that development of HEVs with GVWRs greater than 10,000 pounds has not progressed to the same degree as light duty passenger vehicles. Since HEVs with GVWRs greater than 10,000 pounds have many uses, they have different operating characteristics than lighter HEVs, presenting challenges not addressed by the proposed changes. International also expressed concern that there do not appear to be data addressing whether the proposed creep force requirements are appropriate for vehicles with GVWRs greater than 10,000 lbs. International further stated that NHTSA should also be aware that in addition to IC/electric hybrid vehicles, research is ongoing for IC/hydraulic hybrid medium duty vehicles. Since the proposed changes have been specifically written for IC/electric hybrid vehicles, applying these proposed changes to other types of hybrids could pose problems.

NYCT expressed concern that the proposed rule fails to allow for different configurations possible with electric, hybrid-electric, and fuel cell vehicles. NYCT commented that the proposed rule appears to be based on the characteristics of two parallel hybrid-electric gasoline ICE passenger cars (Toyota Prius and Honda Insight) currently in large-scale production. In addition, NYCT indicated that the survey data provided on creep force in Table 1 of the NPRM (at 68 FR 26274) is limited to passenger cars and light trucks of less than 18,000 lbs. GVWR.

NYCT stated that on conventional ICE vehicles with automatic transmissions, creep force provides an anti-rollback function, an important safety feature, on moderate grades. However, the heavy-duty series hybrid-electric buses currently operated by NYCT have an anti-rollback system without creep force. The propulsion system automatically provides torque to prevent rolling backward when the brakes are released on an ascending grade (and also to prevent rolling forward when the bus is in reverse on a descending grade). However, this feature does not allow the vehicle to move in the selected direction until the accelerator is depressed. NYCT has found this arrangement effective for preventing rollback. However, the proposed rule appears to prohibit this design since the rule requires creep force. NYCT stated that the proposed rule would require NYCT's vehicle suppliers to re-design part of their propulsion systems. The attendant engineering costs could have a very significant impact on vehicle lifecycle costs for NYCT, particularly since the North American market for heavy-duty hybrid-electric transit buses is currently limited to a few hundred units per year.

In response, NHTSA recognizes the comments from International and NYCT on heavier hybrid vehicles. We realize the NPRM's creep force requirement may conflict with some systems currently used on heavy trucks and buses. In fact, series systems used on some buses, where the ICE is strictly used to generate electrical power and is not connected to the vehicle drive train, would have been prohibited from stopping in Reverse when it was not needed. This would have caused additional changes and exceptions to the proposed language in the NPRM, leading to additional complexity. The issues presented by International and NYCT are solved by new language in this final rule. The new requirements do not create problems for larger vehicles with series hybrid systems and anti-rollback systems and does not affect the development of new technologies.

In the NPRM, we asked for comment on whether we should require a limit on throttle opening on idle-stop systems when the engine is automatically starting. The limit on throttle opening would prevent vehicle surging when the driver may rapidly remove his foot from the brake and depress the accelerator to full throttle just before or as the engine automatically starts. Although such vehicle surging is not a problem on the Prius and Insight, it was suggested that such a requirement might be necessary for future idle-stop designs.

Comments from AHAS supported the idea that vehicles that allow the ICE to stop and start automatically should not cause sudden acceleration of the vehicle even when the accelerator pedal is fully depressed during ICE automatic starting.

Honda did not agree with new criteria which would limit throttle opening. Honda agrees with NHTSA that it is necessary to design the idle-stop system to prevent sudden surging during normal operation and during failure modes; however, Honda believes that additional criteria may inhibit future idle-stop development. Honda commented that in its system, when the accelerator pedal is pushed quickly and aggressively after the brake pedal is released, the Honda Integrated Motor Assist (IMA) is capable of restarting the ICE quickly. The first engine firing occurs after the brake pedal is released and before the accelerator pedal is depressed. After the brake pedal is released, brake pressure is maintained while the transmission automatically and rapidly shifts to neutral during engine restarting. After the engine has started, the transmission rapidly shifts to Drive and brake pressure is released. The drive train is engaged quickly and electrically controlled to prevent surging engine revolutions and to prevent vehicle surging. Therefore, on the Insight, Honda said it is unnecessary to place additional limits on the throttle. If the engine should fail to start when the brake is released, brake pressure is maintained and the transmission is in Neutral. The starter turns the engine but is limited to a 2 second duration. Honda indicated that there are many ways in addition to controlling the throttle opening, to control the engine revolutions and prevent vehicle surging. Such additional ways include retarding the ignition fire timing and cutting the fuel injection. In the future, idle-stop technology may be applied to vehicles that use Drive By Wire (DBW) systems where throttle opening is easily controlled electronically. However, requiring control of the throttle opening now could mandate specific hardware, such as DBW, which could inhibit other types of advanced technologies.

Nissan agreed it is necessary to consider the unexpected movement of a stopped vehicle in the design process, but opposed a specified maximum throttle position as a means to achieve design goals. Nissan commented that design specific regulations could restrict development of alternative technologies to meet the same goal. For example, another possible method to control unexpected movement during an automatic engine start is to limit the output of the transmission to the drive axles. While the ability of such a system may be equal to or better than the use of an artificial maximum throttle position, it would not be an acceptable alternative if throttle position is regulated. To allow for the broadest range of technologies, Nissan suggested the agency regulate the threshold and response of the vehicle to the given condition, and allow each manufacturer to decide how best to achieve the desired performance.

AIAM supported the need for safeguards to prevent sudden surging of the vehicle when the engine automatically starts.

International indicated that there might be situations in which limiting power might prevent the operator from avoiding a crash. If the vehicle is stopped on railroad tracks or in the middle of an intersection, the ability to rapidly accelerate might allow the operator to avoid a crash. International recommended that the maximum allowable acceleration or jerk of the vehicle during an engine start be limited to the same value as the acceleration or jerk with the engine already running. This limitation would prevent sudden motions that the operator is not used to but would allow full power to be available for emergency maneuvers.

DaimlerChrysler commented that it was in favor of limiting the throttle opening to less than or equal to 1/4 throttle.

Toyota commented that in addition to NHTSA's concerns, the situation may arise where a regulation limiting maximum throttle could hinder a driver from escaping a situation in which the driver may have intentionally wanted full throttle. Considering both sides of the issue, Toyota recommended that the agency allow manufacturers to continue developing and incorporating their own means to balance throttle control.

NHTSA notes that a requirement to regulate throttle opening during automatic engine start emerged out of concerns that in future systems, vehicle surging may result when drivers of vehicles equipped with idle-stop systems go from braking to full throttle very quickly, before or while the ICE was in the process of automatically starting. The Honda Insight handles this scenario well, as when the accelerator is fully depressed during automatic engine start, the engine starts and the vehicle gradually accelerates without surging or any unexpected movement. Such a scenario is of no consequence to the Toyota Prius, as actuation of the accelerator to any degree, at any time, will initiate vehicle movement exactly like a conventional non-hybrid-electric vehicle with an automatic transmission, as the electric motor will move the vehicle during situations where the engine is stopped or in the process of automatically starting.

The majority of the comments were in favor of preventing possible vehicle surging in idle-stop systems by allowing manufacturers to continue to design safeguards of their choosing into their systems. The comments indicate that a requirement limiting throttle opening could possibly limit the use of other techniques and designs that would also prevent vehicle surging when the ICE automatically starts during full throttle. Comments also indicated that limiting full throttle might place a driver/vehicle in a dangerous position in cases where full throttle is needed. NHTSA knows that vehicle surging is not an issue for the Prius or the Insight. NHTSA agrees with comments that anticipated safety issues can be solved by a variety of well-designed approaches. NHTSA concludes that since current systems have addressed this issue and the requirement to limit throttle opening may inhibit other methods and techniques to prevent surging in vehicles with idle-stop systems, no action should be taken on this issue at this time.

In the NPRM, we requested comment on whether FMVSS No. 102 should include a requirement for a manual idle-stop override, to allow the driver to disable the idle-stop system and prevent the engine from automatically stopping in cases such as an idle-stop system malfunction or a delay in automatic starting.

Honda did not agree with NHTSA's proposal, which would require a control that permits the driver to manually deactivate or override the idle-stop system. Honda indicated that it has incorporated a number of fail-safe features in its Integrated Motor Assist system that automatically prevents the idle-stop system from operating due to such conditions as low battery power, cold engine, or brake switch failure. Honda did not think a manual lockout function is needed because it could create unnecessary confusion and opportunities for misuse. Honda believes it is the manufacturer's responsibility to design systems to perform properly under all driving conditions and to be convenient and fail-safe by using automatic techniques that are appropriate for the technology employed. Honda stated that regulating specific features, such as a manual lockout, is not necessary at this time and could restrict some future technologies.

Nissan agreed that the idle-stop system should cease to function in the event of a system malfunction; however, Nissan and the AIAM opposed a requirement for a control that would allow the operator to lock out or turn off the system. Given that an idle-stop system (one that includes diagnostic functions) can automatically cease its function and provide equivalent safety performance without operator control, Nissan does not believe that an external control is necessary for all systems. Additionally, if the system provides a control that would allow the operator to lock out or turn off the system, the improvement in fuel economy, the main purpose of the idle-stop, could be reduced. Nissan concluded that a control allowing the operator to deactivate the system is not needed if the system includes a diagnostic function. AIAM provided similar reasons for their opposition to a manual control for locking out an idle-stop system.

International commented that the engine controller should detect if the system is degrading, then shut down the idle-stop system and provide a “service engine” type message. Some fleets and owners/operators prefer to avoid new controls because of added distraction and such a control would rarely be used, which means the operator may forget its location or proper use. Such controls would allow truck and bus drivers to lockout the system based on personal preference, even though it is operating properly, thus eliminating many of the benefits of the system.

DaimlerChrysler indicated that it would expect a manual override to be permitted and not just for malfunctions. In the override mode, the transmission and engine control system would meet the current FMVSS No. 102 requirements. One minute would seem like a reasonable time in “auto stop” mode before an “auto start” should occur. This could accommodate most traffic signal stops or pauses in traffic. DaimlerChrysler also commented it assumes that manual, as well as, automatic overrides of this engine control strategy would be permitted. For example, during high and low ambient temperature conditions, it may be advantageous to automatically override the “auto stop” feature to permit use of air conditioning, defroster, electrically heated seats, or to recharge a discharged battery.

Toyota's comments expressed concerns that requiring an idle-stop override would allow consumers to disable the idle-stop system and negate its environmental benefits. Toyota stressed that manufacturers already design their own safeguards to address malfunctions or excessive automatic starting times. Different manufacturers may use different strategies and regulating this area, at this time, may inhibit introduction of new technologies. In order to advance the introduction of idle-stop technology, Toyota stated its belief that the agency should continue to allow manufacturers to design in their own algorithms to address these concerns. For example, Toyota's algorithms ensure the vehicle continues to be operational if there is a problem with the hybrid system. In Toyota's designs, the vehicle reverts to an “engine on” mode, during which the vehicle's engine remains on until the ignition is turned off, similar to current conventional internal combustion engine vehicles.

In response, NHTSA notes that it raised the issue of a manual override in the NPRM as there were concerns that as vehicles equipped with idle-stop systems age, a delay in ICE restarting may develop. NHTSA anticipates that the idle-stop feature will eventually become commonplace on a significant number of conventional non-hybrid vehicles. Delays in vehicle restarting, as well as inoperable vehicles due to malfunctioning idle-stop systems is a potential future safety concern. NHTSA cannot predict the design of these future systems nor the automatic overrides they may include. A manual override requirement would provide a measure of safety until such automatic overrides and their performance tests/criteria could be defined. The majority of commenters did not agree that an idle-stop system manual override was necessary. However, comments did indicate that automatic overrides may be important. Honda has addressed the issue of overriding the idle-stop system in its design of the Insight by preventing the engine from automatically stopping during certain malfunctions with the idle-stop system or during conditions when the idle-stop system would not perform well. Therefore, as a result of these public comments, NHTSA will not include a requirement for a manual override in this final rule. NHTSA will monitor the performance of idle-stop systems as they develop and take action as necessary.

In the NPRM, we sought comments on whether there should be a limit on the time it takes for an ICE to start automatically once the brake pedal reaches the fully released position. We were concerned that as idle-stop systems age, the time interval between brake pedal release and automatic engine start may become excessive. Delays in engine restarting may have safety implications in situations where vehicles are stopped at intersections or railroad crossings and must accelerate quickly to avoid other traffic or emergency vehicles.

Nissan commented that the time required for the propulsion system to be available to move the vehicle after the brake pedal is released may be different depending on the circumstances and on multiple design and performance target factors. For example, starting the vehicle after a traffic signal changes to green, making a right turn through an intersection, turning left through an intersection in front of an oncoming vehicle, accelerating or merging into traffic, and moving slowly through congested traffic, may all require different availability and response times from the propulsion system. Nissan indicated that it would decide the allowable time for such a propulsion system to be available to move the vehicle after the brake pedal is released based on an analysis of safety and performance factors and the expected consumer acceptance of the system. Nissan indicated that the agency should not restrict design choices, but rather should allow manufacturers the flexibility to decide the allowable time for its vehicles.

International recommended that the interval should be no longer than the time it takes the operator to move his foot from the brake to the accelerator. When a driver applies the accelerator, his expectation is that the vehicle will accelerate and any delay has the potential to cause confusion or problems. International stated it is likely that the time between brake pedal release and availability of the propulsion system would be a customer acceptance issue and need not be regulated.

NHTSA notes that although commenters thought that the maximum permitted time between brake pedal release and propulsion system availability should be a consideration during design of idle-stop systems, commenters did not favor including a minimum time requirement in the final rule. Commenters stated their belief that this issue was one of customer acceptance and should be left up to manufacturers. NHTSA acknowledges that such delays are not an issue with the Prius and the Insight and the anticipation of such a problem presents no more risk than a non-HEV that develops a hesitation problem during acceleration. Therefore, NHTSA will not amend the regulatory text to include a minimum time requirement for ICE automatic starting.

International recommended that FMVSS No. 102 remain as is and that a new standard be added that would apply to hybrid-electric vehicles. International stated its belief that trying to incorporate hybrid-electric vehicles within FMVSS No. 102 is “very confusing” and the confusion will be compounded as other types of hybrid vehicles are developed in the future.

While NHTSA has considered this comment, it has decided not to place the requirements for hybrid-electric vehicle propulsion systems in a separate standard at this time. In the NPRM, exceptions were simply added to existing starter interlock requirements for vehicles to clarify that ICEs may automatically stop and start after driver activation. NHTSA believes that the FMVSS No. 102 language in this final rule is straightforward and easy to understand as written. In the future, if further regulation of hybrid/hybrid-electric vehicle propulsion systems becomes necessary and if such regulation should become complex and confusing, NHTSA may then consider efforts to separate and further clarify requirements.

DaimlerChrysler commented that the current state-of-the-art and research are still evolving and the term “Driver Activation” in the Executive Summary (at 68 FR 26270) of the NPRM is not clearly defined. The hybrid-electric vehicles mentioned in the NPRM provide the driver with an alternate means of starting the engine without using the ignition key. DaimlerChrysler recommended that we clarify whether starting the engine without using the ignition key falls under the Automatic Activation heading. At the same time DaimlerChrysler believes the safety purposes of FMVSS No. 102 should be preserved.

In response, “driver activation” as used by the agency in this rulemaking, relates to the current state-of-the-art. “Driver activation” distinguishes between the driver's initial turning on of the propulsion system (which may include the starting of the vehicle's ICE) versus the propulsion system's automatic stopping and starting of the ICE, which occurs only after the driver's initial activation. Whatever action it takes for the driver to initially activate the vehicle's propulsion system and place the vehicle in a mode where its propulsion system can operate and move the vehicle is considered “driver activation.” Driver activation includes such actions as inserting a key into the ignition and turning it, pushing a starter button, and activating a remote keyless starting system.

In the NPRM, the term “after the driver has activated the vehicle's propulsion system” was used because in hybrid-electric vehicles such as the Toyota Prius, if certain conditions are met (such as the engine is warm, and the batteries are charged), when the driver turns the ignition on and attempts to start the ICE, the ICE may not start because it may not be needed. Even if the ICE is not needed and doesn't start, the driver is still enabling the propulsion system and when the shift position is placed in a drive gear, the electric motor will provide creep force, as well as power the vehicle when the accelerator is depressed. After the driver has activated the vehicle's propulsion system, the ICE may automatically start and stop as needed. NHTSA believes that the wording used in the Executive Summary and the proposed regulatory text accurately describes driver activation and automatic engine starting in hybrid-electric vehicles.

Toyota commented that in the NPRM and in FMVSS 102, the terms “position of the lever” and “shift position” are used interchangeably. Toyota believes the more appropriate term is “shift position”. Toyota made this comment because advanced technologies have resulted in vehicles with computerized transmissions and electronic shifters such as joysticks. The “position of the lever” for such systems does not always correspond to the “shift position”. Therefore, Toyota recommends that the agency ensure the term “shift position” is used in place of the term “position of the lever.”

In response, NHTSA agrees with the comment from Toyota. When FMVSS No. 102 was initially written, all transmissions were controlled by mechanically linked shift levers that sequenced serially from one position to the next. If the lever was positioned next to the letter D, the driver knew that the vehicle was in a forward drive gear. Neutral had to be located between Reverse and Drive so that the system would transition through Neutral when changing back and forth between Drive and Reverse. Presently, shift-by-wire technology and electronically controlled transmissions have led to joystick-type shifters where the shifter returns to a resting position after a gear is selected. If the shifter is momentarily pushed to the D position, the transmission shifts to Drive, a Drive telltale light illuminates to let the driver know the transmission is in Drive and the shifter, when released, returns to its rest position. The telltale light, not the shifter position, tells the driver what gear the transmission is in. In such a system, when shifting from Drive to Reverse, the transmission automatically transitions from Drive to Neutral to Reverse.

Such systems are not limited to joysticks. In some systems push buttons and paddle shifters are also used. In all of these cases, the telltale light, not the position of the lever, paddle, or button, tells the driver of the transmission gear. Whether a paddle, lever or button is used for shifting, the transmission must automatically transition through Neutral when going back and forth between Drive and Reverse. Recently, NHTSA issued an interpretation to Lemf”rder Corporation (August 1, 2002) which submitted diagrams of several joystick sequences. The interpretation evaluated these sequences and discussed whether or not they were in compliance with the sequence requirements of FMVSS No. 102. NHTSA believes that in view of present and emerging shift selection technology, it would be more accurate if the amended portions of FMVSS No. 102 addressed “shift position” rather than “shift lever position.” The title of FMVSS No. 102 is also amended to read: “Transmission shift position sequence, starter interlock, and transmission braking effect.” Portions of the standard that specifically refer to systems with shift levers (S3.1.1.1) will remain as written.

Comments from Denso requested clarification of exclusions for the starter interlock requirements as they appear in the regulatory text of the NPRM. Denso indicated that NHTSA's NPRM prescribes conditions under which a vehicle engine may stop and restart automatically when the transmission shift lever is in a forward or reverse drive position, as exclusions to the general starter interlock requirements (S 4.1.3 of the NPRM). Denso stated its belief that the proposed amendment means that the exclusions permit the engine to “stop and restart” automatically when the transmission shift lever is kept in a forward position (without shifting the lever from the forward position to a reverse position) in S4.1.3.1, or while the lever is kept in a reverse position (without shifting the lever from the reverse position to a forward position) in S4.1.3.2.

However, Denso stated that in actual driving conditions and depending on system design, the shift lever need not always be in the same position when the engine stops and restarts. For example, the engine may automatically stop when the transmission shift lever is in a forward position and then automatically restart after the lever has been shifted from the forward position to a reverse position. Similarly, the engine may automatically stop when the transmission shift lever is in a reverse position and then automatically restart after the lever has been shifted from the reverse position to a forward position. Denso commented that in the latter two cases, it is not clear that either S4.1.3.1 or S4.1.3.2 should be applied. Denso further stated that it is not clear whether the engine in the two cases is permitted to automatically restart. Therefore, Denso requested that NHTSA review the exclusions to S4.1.3 to clarify its application, considering all transmission shift lever positions.

Denso also commented that S4.1.3.2 of the NPRM would require vehicles having an automatic engine stop/start feature that operates when the vehicle is in reverse gear to meet creep force requirements whenever the transmission shift lever is in a reverse position and requires manufacturers to demonstrate compliance with the creep force requirements by testing the vehicle with the engine stopped. Denso submitted a Table “Examples of Engine/Motor Operation flow when the Transmission Shift Lever is in a Reverse Position” (the Table) which provides examples of possible automatic engine and motor operation flow  3 for hybrid-electric vehicles (HEVs) and internal combustion engine only vehicles (ICEVs). Denso indicated that the operational status of the engine and the motor when the transmission shift lever is shifted to the reverse position and when the brake pedal is partially/fully released are classified into “motor operation only”, “engine operation only”, and “simultaneous motor and engine operation”. Denso commented that it is not clear how the proposed rule would be applied to the scenarios, which are shown in the Table and asked NHTSA to clarify how the proposed rule will apply to each case. The Table appears in Denso's comments in DOT Docket No. NHTSA-2003-14907-9.

Denso also asked that regarding the creep force compliance test, according to the Table, the systems that operate by automatically restarting the engine on and before the brake pedal is fully released (scenarios numbers 6 to 8, 11, 12, Nos.13 to 18, Nos. 20 to 22 in the Table) cannot be tested to justify the compliance with the creep force requirement; because it appears that these systems cannot achieve the engine stopped condition specified in S4.1.3.2. Denso wanted advice as to what test procedures would apply to these cases. Denso stated its belief that NHTSA's intent for requiring the creep force is to warn driver of what gear the vehicle is engaged in and asked NHTSA to state the rule more clearly and to address the cases listed in the Table. Moreover, Denso urged NHTSA not to unnecessarily restrict future developments of stop/start technologies.

In response, NHTSA notes that the new language in this final rule states that after the driver has activated the vehicle's propulsion system, the engine may stop and restart automatically when the transmission shift position is in any forward drive gear. When the transmission shift position is in reverse gear, this final rule permits the engine to restart automatically if two conditions are satisfied. Both conditions apply to the situation where the engine is automatically stopped in a forward drive shift position and the driver selects Reverse. The first condition is that the engine must restart immediately when the service brake is applied. The second condition is that the engine does not start automatically if the service brake is not applied. The final rule also provides that the engine may stop and start anytime after the driver has activated the vehicle's propulsion system if the vehicle's propulsion system can propel the vehicle in the normal travel mode in all forward and reverse drive gears without the engine operating and if the engine automatically starts while the vehicle is traveling at a steady speed and a steady accelerator control setting, the engine does not cause the vehicle to accelerate.

The final rule language permits a vehicle like the Insight to automatically stop and start the engine in forward gears; however, when the driver selects Reverse, the engine must start and remain running in Reverse. The final rule language also permits vehicles like the Prius to allow its engine to automatically start and stop anytime after driver activation of the propulsion system. The Prius engine may stop in a forward gear and restart in Reverse or may stop while in Reverse and restart in a forward gear.

Denso asked us to clarify how the proposed rule would apply to each of the scenarios in the Table. Each scenario describes the status of the ICE, electric motor, brake pedal and accelerator while the shift position is in Reverse. Denso also asked that we comment and/or clarify how scenarios numbers 6,7,8,11,12,13,14,15,16,17,18,20,21,22 would be tested using the test procedure described in S5 of the NPRM.

The new language that appears in this final rule does not use creep force to distinguish between types of hybrid vehicles and does not include a test for minimum creep force. Therefore, any concerns about how certain scenarios would be tested for minimum creep force are now moot.

The following five issues were also raised in response to the NPRM.

1. Minimum Creep Force Value of 1.5 Percent of GVWR —DaimlerChrysler commented that the creep force ratio defined as .015 (creep force/GVWR) is a good starting point. Ford commented that there is not enough data to support the specific minimum value of creep force proposed. NYCT expressed concern about the proposal to require a creep force of at least 1.5 percent of GVWR, as Table 1 of the NPRM did not include data from any commercial vehicles.

2. Applicability of the Phrase “Brake Pedal Released” to Air Brakes —International commented that air brake systems have different operating characteristics than do hydraulic brake systems. Statements in S4.1.3.2 of the NPRM such as “before the brake pedal is released” and “with the brake pedal released” have a different interpretation when addressing a vehicle with hydraulic versus air brakes. International also stated that S5.1.7 needs more detail. International asked if the system passes if the device registers in the last .001 inch of pedal movement. International stated that a better test may define this in terms of creep force being present at certain points in the pedal travel or at pedal forces less than a certain value.

3. Requiring Creep Force in Reverse When the ICE Is Both “On” and “Off” —International commented that the creep force requirement in reverse gear should apply if the engine is on or off. If a vehicle sits in Reverse for a long time, the engine may start up to recharge the battery or to run the heating and air conditioning systems. Confusion may occur if the driver assumes the vehicle is in a forward gear because the engine is running. Therefore International recommends removing the reference to the state of the combustion engine in the definition of Creep Force (S3) and rewriting S5.1.7 to include testing with the engine off and with the engine on.

4. Use of the Term “Electric Motor” in the Regulatory Text —International indicated that references to an electric motor in the definition of “creep force” (S3) of the NPRM exclude future technologies and will require a change to the regulation with each new technology introduced.

5. Use of the Term “Battery” in the Regulatory Text —International commented that the reference to the word “battery” in S5.1.2 of the NPRM should differentiate between the starter battery and the propulsion battery (propulsion energy storage system). A 95 percent charge for the starter battery is satisfactory. A suggested state of charge for the propulsion battery is its nominal low limit.

NHTSA notes that these five issues were raised in response to NPRM language that proposed to specify and regulate creep force. This final rule removes the use of creep force to distinguish between the two types of hybrid-electric vehicles and removes the performance test for creep force. New language makes the same distinction between the same vehicles with substantially similar language, but in a simpler manner. The new language creates no problems for vehicles equipped with air brakes. In view of the new language that appears in this final rule, the five series of comments addressing creep force issues are no longer applicable.

In the NPRM, we proposed to limit the operation of idle-stop systems to forward gears in order to minimize the possibility of vehicle crashes resulting from shifting errors. In an idle-stop equipped vehicle, if the engine is stopped and the driver has mistakenly placed the vehicle in Reverse, there is no cue from creep force and the shifting error may not be realized until the accelerator pedal is pressed and the engine automatically restarts. When the driver presses the accelerator, he may be surprised when the vehicle accelerates rearward rather than forward. Such situations can cause property damage, as well as, injuries and deaths to pedestrians. Allowing idle-stop systems to operate only in forward gears has fewer ramifications, as the driver will learn to associate automatic engine stopping and starting with forward motion.

However, amending Standard 102 to prohibit all vehicles, including hybrid-electric vehicles, from automatically stopping and starting the engine in Reverse would have no safety purpose for a vehicle like the Prius in which engine starting has no effect on its low speed operation. Therefore, a distinction should be made between the two types of hybrid vehicles. In the NPRM, the agency attempted to distinguish between these two types of hybrid-electric vehicles (electric motor-powered vehicle assisted by an ICE (such as the Prius) vs. the ICE-powered vehicle assisted by an electric motor (such as the Insight)) by requiring vehicles that allow its ICE to automatically stop and start in Reverse to exhibit creep force in Reverse when the engine is stopped. The Insight does not stop the engine in Reverse and if the engine is automatically stopped in a forward gear, it starts immediately when Reverse is selected and the service brake is applied. The Prius exhibits creep force in reverse with its ICE stopped and therefore, the requirement permitted both hybrid vehicle designs while limiting the operation of idle-stop systems for conventional vehicles to forward gears only.

Public comments to the NPRM questioned the validity of specifying creep force, raising questions as to conditions under which creep force should be exhibited, and how the proposed amendment would apply to series hybrid-electric systems. 4 Because solutions to the issues raised by public comments would increase the complexity of the regulatory language, we began to consider alternatives that would meet the same objectives that we sought in the NPRM.

A refined, simpler approach was developed and appears in this final rule. This approach makes the same distinction between vehicles as does the NPRM and produces a substantially similar outcome. This final rule generally requires that the engine starter be inoperative when the transmission shift position is in a forward or reverse drive position. However, after the driver has activated the vehicle propulsion system, the engine may stop and start automatically when the transmission shift position is in any forward drive gear. The rule prohibits the engine from automatically stopping in reverse gear. When the engine is automatically stopped in a forward drive shift position and the driver selects Reverse, this final rule permits the engine to restart automatically in Reverse if two conditions are satisfied. The first condition is that the engine must restart immediately whenever the service brake is applied. The second condition is that the engine does not start automatically if the service brake is not applied.

A second exception applies to vehicles like the Prius where unrestricted engine starting introduces no safety issues. The final rule specifies that the engine may automatically stop and start anytime after the driver has activated the vehicle's propulsion system if the vehicle's propulsion system can propel the vehicle in its normal travel mode in all forward and reverse drive gears without the engine operating, and if the engine automatically starts while the vehicle is traveling at a steady speed and a steady accelerator control setting, the engine does not cause the vehicle to accelerate. This new wording makes a distinction between two types of hybrid vehicles (Insight and Prius) as does the NPRM. The final rule permits the idle-stop feature to operate in forward gears for any vehicle but prohibits it from functioning in Reverse unless the vehicle has special characteristics that are specified in simple language. If the engine on an idle-stop equipped vehicle is stopped in a forward gear and the shift position is changed to Reverse, it requires the brake to be depressed before the engine starts. Therefore, if Reverse is selected by mistake, the driver's foot is on the brake and he or she is prepared to stop the vehicle. It also allows for vehicles like the Prius, which behaves like a conventional ICE/automatic transmission equipped vehicle no matter what the status of the ICE. Therefore, this different approach that appears in this final rule makes the same distinction between the same vehicles as does the NPRM and achieves an outcome substantially similar to that in the NPRM but in a simpler manner. The approach in the final rule permits the designs of the Insight and the Prius for which the original interpretations were written. The final rule also permits the designs used on the hybrid-electric Civic, Accord and the redesigned Prius, as well as series hybrid-electric systems used in heavy vehicles such as buses. The final rule imposes no burden on manufacturers of current hybrid vehicles, and allows for flexibility in future designs. Finally, this final rule does not compromise the original safety intent of Standard 102.

We have issued this final rule pursuant to our statutory authority. Under 49 U.S.C. Chapter 301, Motor Vehicle Safety (49 U.S.C. 30101 et seq. ), the Secretary of Transportation is responsible for prescribing motor vehicle safety standards that are practicable, meet the need for motor vehicle safety, and are stated in objective terms. 49 U.S.C. 30111(a). When prescribing such standards, the Secretary must consider all relevant, available motor vehicle safety information. 49 U.S.C. 30111(b). The Secretary must also consider whether a proposed standard is reasonable, practicable, and appropriate for the type of motor vehicle or motor vehicle equipment for which it is prescribed and the extent to which the standard will further the statutory purpose of reducing traffic accidents and deaths and injuries resulting from traffic accidents. Id. Responsibility for promulgation of Federal motor vehicle safety standards was subsequently delegated to NHTSA. 49 U.S.C. 105 and 322; delegation of authority at 49 CFR 1.50.

As a Federal agency, before promulgating changes to a Federal motor vehicle safety standard, NHTSA also has a statutory responsibility to follow the informal rulemaking procedures mandated in the Administrative Procedure Act at 5 U.S.C. Section 553. Among these requirements are Federal Register publication of a general notice of proposed rulemaking, and giving interested persons an opportunity to participate in the rulemaking through submission of written data, views or arguments. After consideration of the public comments, we must incorporate into the rules adopted, a concise general statement of the rule's basis and purpose.

The agency has carefully considered these statutory requirements in promulgating this final rule to amend FMVSS No. 102. As previously discussed in detail, we have solicited public comment in an NPRM and have carefully considered the public comments before issuing this final rule. As a result, we believe that this final rule reflects consideration of all relevant available motor vehicle safety information. Consideration of all these statutory factors has resulted in the following decisions in this final rule.

In the NPRM, we proposed to limit the operation of idle-stop systems to forward gears in order to minimize the possibility of vehicle crashes resulting from shifting errors. In an idle-stop equipped vehicle, if the engine is stopped and the driver has mistakenly placed the vehicle in Reverse, there is no cue from creep force and the shifting error may not be realized until the accelerator pedal is pressed and the engine automatically restarts. When the driver presses the accelerator, he may be surprised when the vehicle accelerates rearward rather than forward. Such situations can cause property damage, as well as, injuries and deaths to pedestrians. Allowing idle-stop systems to operate only in forward gears has fewer ramifications, as the driver will learn to associate automatic engine stopping and starting with forward motion.

However, amending Standard 102 to prohibit all vehicles, including hybrid-electric vehicles, from automatically stopping and starting the engine in Reverse would have no safety purpose for a vehicle like the Prius in which engine starting has no effect on its low speed operation. Therefore, we decided to make a distinction between the two types of hybrid vehicles. In the NPRM, the agency attempted to distinguish between these two types of hybrid-electric vehicles (idle-stop/Insight and the Prius) by requiring vehicles that allow its ICE to automatically stop and start in Reverse to exhibit creep force in Reverse when the engine is stopped. The Insight does not stop the engine in Reverse and if the engine is automatically stopped in a forward gear, it starts immediately when Reverse is selected and the service brake is applied. The Prius exhibits creep force in reverse with its ICE stopped and therefore, the requirement permitted both hybrid vehicle designs while limiting the operation of idle-stop systems for conventional vehicles to forward gears only.

Public comments to the NPRM questioned the validity of specifying creep force, raising questions as to conditions under which creep force should be exhibited, and how the proposed amendment would apply to series hybrid-electric systems. Because solutions to the issues raised by public comments would increase the complexity of the proposed amendment, we began to consider alternatives that would meet the same objectives that we sought in the NPRM.

A new and simpler approach was developed and appears in this final rule. This new approach makes the same distinction between the same vehicles as does the NPRM and produces a substantially similar outcome. This final rule amends FMVSS No. 102 to require that the engine starter be inoperative when the transmission shift position is in a forward or reverse drive position. With respect to vehicles with automatic transmissions, the rule permits, after activation of the vehicle's propulsion system by the driver, the engine to stop and restart automatically when the transmission shift position is in any forward drive gear. The rule prohibits the engine from automatically stopping in reverse gear. When the engine is automatically stopped in a forward drive shift position and the driver selects Reverse, this final rule permits the engine to restart automatically in Reverse if two conditions are satisfied. The first condition is that the engine must restart immediately whenever the service brake is applied. The second condition is that the engine does not start automatically if the service brake is not applied.

A second exception applies to vehicles like the Prius where unrestricted engine starting introduces no safety issues. The final rule specifies that the engine may automatically stop and start anytime after the driver has activated the vehicle's propulsion system if the vehicle's propulsion system can propel the vehicle in its normal travel mode in all forward and reverse drive gears without the engine operating, and if the engine automatically starts while the vehicle is traveling at a steady speed and a steady accelerator control setting, the engine does not cause the vehicle to accelerate. This new wording makes a distinction between two types of hybrid vehicles (Insight and Prius) as did the NPRM. The final rule permits the idle-stop feature to operate in forward gears for any vehicle but prohibits it from functioning in Reverse unless the vehicle has special characteristics that are specified in simple language. If the engine on an idle-stop equipped vehicle is stopped in a forward gear and the shift position is changed to Reverse, it requires the brake to be depressed before the engine starts. Therefore, if Reverse is selected by mistake, the driver's foot is on the brake and he or she is prepared to stop the vehicle. It also allows for vehicles like the Prius, which behaves like a conventional ICE/automatic transmission equipped vehicle no matter what the status of the ICE. Therefore, this different approach that appears in this final rule makes the same distinction between the same vehicles as does the NPRM and achieves an outcome identical to that in the NPRM but in a simpler manner. The approach in the final rule permits the designs of the Insight and the Prius for which the original interpretations were written. The final rule also permits the designs used on the hybrid-electric Civic, Accord and the redesigned Prius, as well as series hybrid-electric systems used in heavy vehicles such as buses. The final rule imposes no burden on manufacturers of current hybrid vehicles, and allows for flexibility in future designs. Finally, this final rule does not compromise the original safety intent of Standard 102.

As indicated, we have thoroughly reviewed the public comments and amended the final rule to reflect the comments. In the few instances where we did not adopt a comment, we explain why we did not adopt the comment. In most instances, the comments addressed the creep force proposal in the NPRM, which were not adopted in the final rule. These comments were thus made moot. We believe that this final rule, which facilitates the development of propulsion systems, such as hybrid/electric systems, that conserve energy and reduce emissions by stopping the internal combustion engine when it is not needed, meets the need for safety.

AHAS concurred with the NPRM's proposed effective date, which is the first September 1st that occurs 2 years after the publication date of the final rule. International recommended that the proposed changes in the NPRM be applicable only to vehicles with a GVWR less than 10,000 lbs. It stated that if NHTSA does not grant this request, then it requests a much longer lead-time (4 years) for the heavier vehicles. A longer lead time would allow time for further development of these vehicles and also allow time for rule changes if the proposed requirements are not applicable. DaimlerChrysler commented that since we are operating under interpretations, they would like to see an effective date of less than 2 years after publication of the final rule.

In response, NHTSA notes that the new language of the final rule removes any conflicts that existed between current hybrid systems on vehicles with GVWRs greater than 10,000 pounds and the proposed language that appeared in the NPRM. The language in the final rule does not conflict with series hybrid-electric systems usually found on large buses. The final rule language eliminates the test for creep force, distinguishes between the same types of vehicles ( i.e., Insight versus Prius) and yields an outcome that is substantially similar to the language in the NPRM. The final rule does not impose any burden on manufacturers, does not cause redesign of current vehicles and does not restrict the development of new technology. Additionally, the final rule establishes in FMVSS No. 102, the interpretations provided for Toyota (1999) and Honda (2001).

For these reasons, and because it is important to expeditiously clarify how the start interlock requirements apply to vehicles incorporating emerging technologies, NHTSA wishes to minimize any delay in the implementation of the final rule. This final rule takes effect 180 days (approximately 6 months) after publication. NHTSA's statute at 49 U.S.C. Section 30111(d) Effective dates of standards states:

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

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

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

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

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

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

We are revising FMVSS No. 102, Transmission shift position sequence, starter interlock, and transmission braking effect, to clarify how it applies to vehicles with emerging technologies. The amendments do not require changes to current vehicles, and the impacts are so minimal that a full regulatory evaluation has not been prepared.

Executive Order 13132 requires us to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, we may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or unless we consult with State and local governments, or unless we consult with State and local officials early in the process of developing the proposed regulation. We also may not issue a regulation with Federalism implications and that preempts State law unless we consult with State and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The reason is that this final rule applies to motor vehicle manufacturers, and not to the States or local governments. Thus, the requirements of Section 6 of the Executive Order do not apply.

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

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

Pursuant to Executive Order 12988, “Civil Justice Reform,” we have considered whether this rule has any retroactive or preemptive effect. We conclude that it would not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

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

The Administrator has considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and certifies that this final rule will not have a significant economic impact on a substantial number of small entities. The statement of the factual basis for the certification is that since this rulemaking makes no substantive changes in the scope of FMVSS No. 102, small manufacturers of passenger cars, multipurpose passenger vehicles, trucks or buses need not make any changes in vehicle manufacturing processes or procedures to ensure that their vehicles meet an amended FMVSS No. 102. Accordingly, the agency concludes that this final rule does not affect the costs of motor vehicle manufacturers considered to be small business entities.

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

NHTSA has determined that this final rule will not impose any “collection of information” burdens on the public, within the meaning of the Paperwork Reduction Act of 1995 (PRA). This rulemaking action does not impose any filing or recordkeeping requirements on any manufacturer or any other party. For this reason, we discuss neither electronic filing and recordkeeping nor do we discuss a fully electronic reporting option.

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

After conducting a search of available sources (including data from International Organization of Standards or other standards bodies), we have determined that there are not any available and applicable voluntary consensus standards that we can use in this final rule.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if we publish with the final rule an explanation why that alternative was not adopted.

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

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

If you have any responses to these questions, please include them in your comments to the docket number cited in the heading of this final rule.

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

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2005 rock sole TAC in the BSAI is 35,275 metric tons (mt) as established by the 2005 and 2006 final harvest specifications for groundfish in the BSAI (70 FR 8979, February 24, 2005).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS, has determined that the 2005 rock sole TAC in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 33,275 mt, and is setting aside the remaining 2,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for rock sole in the BSAI.

After the effective date of this closure the maximum retainable amounts at §§ 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of rock sole in the BSAI.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.