The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis, usually overnight. The primary and secondary credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to the review and determination of the Board.

The Board approved requests by the Reserve Banks to increase by 25 basis points the primary credit rate in effect at each of the twelve Federal Reserve Banks, thereby increasing from 4.25 percent to 4.50 percent the rate that each Reserve Bank charges for extensions of primary credit. As a result of the Board's action on the primary credit rate, the rate that each Reserve Bank charges for extensions of secondary credit automatically increased from 4.75 percent to 5.00 percent under the secondary credit rate formula. The final amendments to Regulation A reflect these rate changes.

The 25-basis-point increase in the primary credit rate was associated with a similar increase in the target for the federal funds rate (from 3.25 percent to 3.50 percent) approved by the Federal Open Market Committee (Committee) and announced at the same time. A press release announcing these actions indicated that:

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Board certifies that the new primary and secondary credit rates will not have a significantly adverse economic impact on a substantial number of small entities because the final rule does not impose any additional requirements on entities affected by the regulation.

The Board did not follow the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of these amendments because the Board for good cause determined that delaying implementation of the new primary and secondary credit rates in order to allow notice and public comment would be unnecessary and contrary to the public interest in fostering price stability and sustainable economic growth. For these same reasons, the Board also has not provided 30 days prior notice of the effective date of the rule under section 553(d).

In the May 5, 2005 Federal Register , 70 FR 23811-23813, the Bureau of Economic Analysis (BEA) published a notice of proposed rulemaking to remove the reporting requirements for five annual surveys covering international trade in services. No comments on the proposed rule were received. Thus, the provisions in the proposed rule are adopted without change. This final rule amends 15 CFR part 801 by revising Section 801.9(b) to remove the reporting requirements for five annual surveys that collect data covering international trade in services. The five surveys are:

BEA is removing the reporting requirements for these five annual surveys because the information is now being collected on four separate quarterly surveys. Specifically, the BE-9, Quarterly Survey of Foreign Airline Operators' Revenues and Expenses in the United States, replaces the BE-36 survey; the BE-25, Quarterly Survey of Transactions Between U.S. and Unaffiliated Foreign Persons in Selected Services and in Intangible Assets, replaces the BE-47 and BE-93 surveys; the BE-45, Quarterly Survey of Insurance Transactions by U.S. Insurance Companies with Foreign Persons, replaces the BE-48 survey; and the BE-85, Quarterly Survey of Financial Services Transactions Between U.S. Financial Services Providers and Unaffiliated Foreign Persons, replaces the BE-82 survey. BEA began collecting data on these quarterly surveys in 2004.

This final rule has been determined to be not significant for purposes of E.O. 12866.

This final rule does not contain policies with federalism implications as that term is defined in E.O. 13132.

The Chief Counsel for Regulation certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities as that term is defined in the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The factual basis for this certification was published in the proposed rule. No comments were received regarding the economic impact of this rule. As a result, no final regulatory flexibility analysis was prepared.

The surveys being discontinued by this rule have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act under the following OMB control numbers: 0608-0013 (BE-36 survey), 0608-0015 (BE-47 survey), 0608-0016 (BE-48 survey), 0608-0017 (BE-93 survey), and 0608-0063 (BE-82 survey). OMB approved the quarterly surveys under the following OMB control numbers: 0608-0068 (BE-9 survey); 0608-0067 (BE-25 survey); 0608-0066 (BE-45 survey); and 0608-0065 (BE-85 survey).

Peptech Animal Health Pty, Ltd., 35-41 Waterloo Rd., North Ryde, New South Wales 2113, Australia has informed FDA of a change of address to 19-25 Khartoum Rd., Macquarie Park, New South Wales 2113, Australia. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect the change.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Sparhawk Laboratories, Inc., 12340 Santa Fe Trail Dr., Lenexa , KS 66215-3591, filed ANADA 200-371 for the use of Phenylbutazone 20% Injection by veterinary prescription for relief of inflammatory conditions associated with the musculoskeletal system in horses. Sparhawk Laboratories, Inc.'s, Phenylbutazone 20% Injection is approved as a generic copy of Schering-Plough Animal Health Corp.'s, BUTAZOLIDIN Injectable 20%, approved under NADA 11-575. The ANADA is approved as of July 8, 2005, and the regulations in 21 CFR 522.1720 are amended to reflect the approval. The basis of approval is discussed in the freedom of information(FOI) summary.

In accordance with the FOI provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

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. Thousands of pedestrians will cross the bridge during the event and this temporary rule is necessary to ensure their safety as they cross the bridge. Additionally, the event will only impact the waterway users for one hour and will open for vessels in distress.

The American Heart Association, on behalf of the City of Panama City, has requested a temporary rule changing the operation of the Tarpon Dock bascule span drawbridge across Massalina Bayou, mile 0.0, in Panama City, Bay County, Florida. This temporary rule is needed to accommodate approximately 2,000 pedestrians that are expected to participate in a 3.5-mile walk. The bridge is near the beginning of the walk and allowing the bridge to open for navigation during this short time period would disrupt the event and could result in injury. The bridge has a vertical clearance of 7 feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position. Navigation on the waterway consists primarily of commercial fishing vessels, sailing vessels and other recreational craft. Presently, Title 33, Code of Federal Regulations (CFR), Part 117.301 states: The draw of the Tarpon Dock bascule span bridge, Massalina Bayou, mile 0.0, shall open on signal; except that from 9 p.m. until 11 p.m. on July 4, each year, the draw need not open for the passage of vessels. The draw will open at any time for a vessel in distress. This temporary rule will allow the bridge to be maintained in the closed-to-navigation position from 9 a.m. to 10 a.m. on October 15, 2005 to facilitate the American Heart Walk.

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). This temporary rule will be effective for only one hour and is therefore expected to have only a minor affect on the local economy.

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 temporary rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit through the Tarpon dock bridge across Massalina Bayou during the closure. There is not expected to be a significant impact due to the short duration of the closure and the publicity given to the event.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can 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 the preamble.

This rule will 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.

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 cause 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 temporary rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) and (d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less than 30 days after publication in the Federal Register . Publishing a NPRM would be contrary to public interest. Due to the nature of the event, the Coast Guard was not notified by the United States Navy of final details concerning the exercise until less than 30 days prior to the date of the event. Moreover, immediate action is necessary to safeguard Naval and Army vessels from terrorism, sabotage, other subversive acts, or accident. If normal notice and comment procedures were followed, this rule would not become effective soon enough to provide necessary protection to the Port Townsend Waterway and the Naval and Army vessels from the threats posed by hostile entities. For this reason, following normal rulemaking procedures in this case would be impracticable and contrary to the public interest.

Hostile entities continue to operate with the intent to harm U.S. National Security by attacking or sabotaging national security assets. The President has continued the national emergencies he declared following the September 11, 2001 terrorist attacks. 67 FR 58317 ((Sept. 13, 2002) (continuing national emergency with respect to terrorist attacks)); 67 FR 59447 ((Sept. 20, 2002) (continuing national emergency with respect to persons who commit, threaten to commit or support terrorism)); 68 FR 55189 ((Sept. 22, 2003) (continuing national emergency with respect to persons who commit, threaten to commit or support terrorism)).

The President also has found pursuant to law, including the Magnuson Act (50 U.S.C. 191 et. seq. ), that the security of the United States is and continues to be endangered following the attacks (E.O. 13,273, 67 FR 56215 (Sept. 3, 2002) (security endangered by disturbances in international relations of U.S. and such disturbances continue to endanger such relations)). Moreover, the ongoing hostilities in Afghanistan and Iraq make it prudent for U.S. ports and waterways to be on a higher state of alert because the Al Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

The Coast Guard, through this action, intends to assist the U.S. Navy in protecting assets in the Port Townsend Waterway by establishing security zones and notification requirements that will exclude persons and vessels from this waterway and from the immediate vicinity of these vessels. Entry into this zone will be prohibited unless authorized by the Captain of the Port or his designee. The Captain of the Port may be assisted by other Federal, State, or local agencies.

This temporary final rule is established to maintain a distance in accordance with Naval Magazine Indian Island's (NAVMAG) “Explosive Safety Quantity-Distance” (ESQD) Arcs, and for safety and security concerns controls vessel movement in and around the Port Townsend Waterway, Puget Sound, WA.

This temporary final rule establishes a security zone controlling all vessel movement in the Port Townsend Waterway, Puget Sound, WA which includes all waters enclosed in an area with the following points: 48°04′40″ N, 122°44′31″ W; then northwesterly to 48°04′59.5″ N, 122°44′52″ W; then northwesterly to 48°05′35″ N, 122°45′17″ W; then southwesterly to 48°05′20″ N, 122°45′50″ W; then southeasterly to 48°02′39″ N, 122°44′46″ W; then easterly to 48°02′42″ N, 122°44′17″ W; then northerly along the shoreline of the Indian Island to the point of origin. [Datum: NAD 1983].

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).

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. This zone will not have a significant economic impact due to its short duration and small area. Because the impacts of this proposal are expected to be minimal, 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.

If you believe 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 believe it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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. The environmental analysis and Categorical Exclusion Determination will be prepared and be available in the docket for inspection and copying where indicated under ADDRESSES. All standard environmental measures remain in effect.

This order provides notice of the Commission's adoption of minor nomenclature changes in various provisions codified at 39 CFR parts 3001 through 3003. These changes are required because the Commission is relocating from 1333 H Street, NW., Suite 300, Washington, DC 20268-0001 to 901 New York Avenue, NW., Suite 200, Washington, DC 20268-0001. The effective date of the changes is August 29, 2005. The revisions do not entail any changes to existing telephone numbers, ZIP Code, e-mail addresses or the Commission's Web site address ( http://www.prc.gov ).

References to the Commission's current physical address are being replaced whenever they appear with the Commission's new physical address. This affects 39 CFR 3001.9; 43(e)(4)(i); 3001.110 and 116; 39 CFR 3002.3(c); and 39 CFR 3003.3.

Given the nature and limited extent of these changes, the Commission is adopting them as a direct final rule. The effective date is August 29, 2005, which coincides with the continuation of official business at the new location. The Commission directs the Secretary to arrange for publication of this order in the Federal Register .

1. The Commission adopts the nomenclature changes referred to in the body of this order, effective August 29, 2005.

2. The Secretary shall arrange for publication of this order in the Federal Register .

On May 17, 2005 (70 FR 28252), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of the attainment demonstration and Early Action Plan (EAP) for the Roanoke MSA Ozone EAC Area, which consists of the Counties of Botetourt and Roanoke, the Cities of Roanoke and Salem, and the Town of Vinton. The formal SIP revision was submitted by the Virginia Department of Environmental Quality on December 21, 2004, and supplemented on February 17, 2005. Other specifics of the Commonwealth's SIP revision for the Roanoke MSA Ozone EAC Area, and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. On June 16, 2005, EPA received adverse comments on its May 17, 2005 NPR. A summary of the comments submitted and EPA's responses are provided in Section II of this document.

Comment: Several commenters expressed support for the compact process, the goal of clean air sooner, the incentives and flexibility the program provides for encouraging early reductions of ozone-forming pollution, and the deferred effective date of nonattainment designations.

Response: EPA acknowledges the comments of support for our final action.

Comment: One commenter opposes the approval of the SIP revision for the Roanoke MSA Ozone EAC Area because the Area is in violation of the 8-hour ozone standard. The commenter also states that the SIP revision provides for the deferment of a nonattainment designation until a future date, potentially as late as December 31, 2007, and relieves the Area of obligations under Title I, part D of the CAA. Although the commenter is supportive of the goal of addressing proactively the public health concerns associated with ozone pollution, the commenter believes that EPA does not have the legal authority to defer effective dates of designations or to allow areas to be relieved of obligations under Title I, part D of the CAA while they are violating the 8-hour ozone standard, or are designated nonattainment of that standard.

Response: EPA first announced the EAC process in a June 19, 2002 letter from Gregg Cooke, Administrator, EPA Region VI to Robert Huston, Texas Commission on Environmental Quality, followed by a November 14, 2002 memorandum from Jeffrey R. Holmstead, Assistant Administrator, EPA's Office of Air and Radiation to the EPA Regional Administrators, entitled, “Schedule for 8-Hour Ozone Designations and its Effect on Early Action Compacts.” EPA formalized the EAC process in the designation rulemaking on April 30, 2004 (69 FR 23858). In the designation rule, EPA designated 14 EAC areas as nonattainment, but deferred the effective date of the designation until September 30, 2005. The EAC program gives local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard, provided the participating communities are serious in their commitment to control emissions from local sources earlier than the CAA would otherwise require. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental citizens' groups, a number of communities are discussing for the first time the need for regional cooperation in solving air quality problems that affect the health and welfare of its citizens. People living in these areas that achieve reductions in pollution levels sooner will enjoy the health benefits of cleaner air sooner than might otherwise occur. EPA believes this proactive approach involving multiple, diverse stakeholders is beneficial to the citizens of the area by raising awareness of the need to adopt and implement measures that will reduce emissions and improve air quality.

EPA disagrees with the comments that this action on the SIP revision for the Roanoke MSA Ozone EAC Area defers the nonattainment designation for this Area. In our May 17, 2005 NPR (70 FR 28252), EPA proposed approval of an attainment demonstration and EAP SIP revision for the Roanoke MSA Ozone EAC Area. This SIP revision includes an attainment demonstration which demonstrates attainment of the 8-hour ozone NAAQS in the Roanoke MSA Ozone EAC Area by December 31, 2007, and also demonstrates maintenance of the 8-hour NAAQS for five years following the attainment date. As noted in the proposed action, approval of the attainment demonstration and EAP constitutes one of several milestones that an area must meet in order to participate in the EAC process. While approval of this plan is a prerequisite for an extension of the deferred effective date of the designation of this Area, see 40 CFR 81.300(e)(3), neither the proposed approval of this SIP revision nor this final action approving the SIP revision purports to extend the deferral of the effective date of the nonattainment designation for this Area. In a separate rulemaking (69 FR 23858, April 30, 2004), EPA deferred the effective date of the air quality designations of all 14 EAC areas to September 30, 2005. In the April 30, 2004 final rule, EPA responded to comments received during the comment period for this final rule. In a separate proposed rule (70 FR 33409, June 8, 2005), EPA proposed to extend the deferral of the effective date of the air quality designations for these 14 EAC areas. EPA will consider comments regarding its legal authority in the final rule associated with the June 8, 2005 proposed rule.

Regardless of whether EPA's separate actions deferring the effective date of the nonattainment designation for this Area are appropriate, EPA sees no basis to disapprove the attainment and maintenance plan. The provisions of the statute generally provide that areas must demonstrate attainment and maintenance of the NAAQS. See, e.g. , CAA section 110(a)(1) (requiring areas to submit plans providing for “implementation, maintenance, and enforcement” of each NAAQS) and CAA section 172(c)(1) (requiring nonattainment areas to submit plans demonstrating attainment of the NAAQS). The commenter has provided no substantive reason why this plan does not demonstrate attainment and maintenance of the 8-hour standard. Therefore, this action approving the attainment demonstration and maintenance plan is appropriate.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information: (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that States that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a State agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a State audit privilege and immunity law can affect only State enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the State plan, independently of any State enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, State audit privilege or immunity law.

EPA is approving the attainment demonstration and the EAP for the Roanoke MSA Ozone EAC Area. The modeling of the ozone and ozone precursor emissions from sources affecting the Roanoke MSA Ozone EAC Area demonstrates that the specified control strategies will provide for attainment of the 8-hour ozone NAAQS by December 31, 2007, and maintenance of that standard through 2012.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 17, 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, approving the attainment demonstration and the EAP for the Roanoke MSA Ozone EAC Area, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On May 17, 2005 (70 FR 28260), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of the attainment demonstration and the Early Action Plan (EAP) for the Northern Shenandoah Valley Ozone EAC Area, which consists of the City of Winchester and Frederick County. The formal SIP revision was submitted by the Virginia Department of Environmental Quality on December 20, 2004 and supplemented on February 15, 2005. Other specifics of the Commonwealth's SIP revision for the Northern Shenandoah Valley Ozone EAC Area, and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. On June 16, 2005, EPA received adverse comments on its May 17, 2005 NPR. A summary of the comments submitted and EPA's responses are provided in Section II of this document.

Comment: Several commenters expressed support for the compact process, the goal of clean air sooner, the incentives and flexibility the program provides for encouraging early reductions of ozone-forming pollution, and the deferred effective date of nonattainment designations.

Response: EPA acknowledges the comments of support for our final action.

Comment: One commenter opposes the approval of the SIP revision for the Northern Shenandoah Valley Ozone EAC Area because the Area is in violation of the 8-hour ozone standard. The commenter also states that the SIP revision provides for the deferment of a nonattainment designation until a future date, potentially as late as December 31, 2007, and relieves the Area of obligations under Title I, part D of the CAA. Although the commenter is supportive of the goal of addressing proactively the public health concerns associated with ozone pollution, the commenter believes that EPA does not have the legal authority to defer effective dates of designations or to allow areas to be relieved of obligations under Title I, part D of the CAA while they are violating the 8-hour ozone standard, or are designated nonattainment of that standard.

Response: EPA first announced the EAC process in a June 19, 2002 letter from Gregg Cooke, Administrator, EPA Region VI to Robert Huston, Texas Commission on Environmental Quality, followed by a November 14, 2002 memorandum from Jeffrey R. Holmstead, Assistant Administrator, EPA's Office of Air and Radiation to the EPA Regional Administrators, entitled, “Schedule for 8-Hour Ozone Designations and its Effect on Early Action Compacts.” EPA formalized the EAC process in the designation rulemaking on April 30, 2004 (69 FR 23858). In the designation rule, EPA designated 14 EAC areas as nonattainment, but deferred the effective date of the designation until September 30, 2005. The EAC program gives local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard, provided the participating communities are serious in their commitment to control emissions from local sources earlier than the CAA would otherwise require. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental citizens' groups, a number of communities are discussing for the first time the need for regional cooperation in solving air quality problems that affect the health and welfare of its citizens. People living in these areas that realize reductions in pollution levels sooner will enjoy the health benefits of cleaner air sooner than might otherwise occur. EPA believes this proactive approach involving multiple, diverse stakeholders is beneficial to the citizens of the area by raising awareness of the need to adopt and implement measures that will reduce emissions and improve air quality.

EPA disagrees with the comments that this action on the SIP revision for the Northern Shenandoah Valley Ozone EAC Area defers the nonattainment designation for this Area. In our May 17, 2005 NPR (70 FR 28260), EPA proposed approval of an attainment demonstration and EAP SIP revision for the Northern Shenandoah Valley Ozone EAC Area. This SIP revision includes an attainment demonstration which demonstrates attainment of the 8-hour ozone NAAQS in the Northern Shenandoah Valley Ozone EAC Area by December 31, 2007, and also demonstrates maintenance of the 8-hour NAAQS for five years following the attainment date. As noted in the proposed action, approval of the attainment demonstration and EAP constitutes one of several milestones that an area must meet in order to participate in the EAC process. While approval of this plan is a prerequisite for an extension of the deferred effective date of the designation of this Area, see 40 CFR 81.300(e)(3), neither the proposed approval of this SIP nor this final action approving the SIP purports to extend the deferral of the effective date of the nonattainment designation for this Area. In a separate rulemaking (69 FR 23858, April 30, 2004), EPA deferred the effective date of the air quality designations of all 14 EAC areas to September 30, 2005. In the April 30, 2004 final rule, EPA responded to comments received during the comment period for this final rule. In a separate proposed rule (70 FR 33409, June 8, 2005), EPA proposed to extend the deferral of the effective date of the air quality designations for these 14 EAC areas. EPA will consider comments regarding its legal authority in the final rule associated with the June 8, 2005 proposed rule.

Regardless of whether EPA's separate actions deferring the effective date of the nonattainment designation for this Area are appropriate, EPA sees no basis to disapprove the attainment and maintenance plan. The provisions of the statute generally provide that areas must demonstrate attainment and maintenance of the NAAQS. See e.g. , CAA section 110(a)(1) (requiring areas to submit plans providing for “implementation, maintenance, and enforcement” of each NAAQS) and CAA section 172(c)(1) (requiring nonattainment areas to submit plans demonstrating attainment of the NAAQS). The commenter has provided no substantive reason why this plan does not demonstrate attainment and maintenance of the 8-hour standard. Therefore, this action approving the attainment demonstration and maintenance plan is appropriate.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information: (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “regarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “to the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a State audit privilege and immunity law can affect only State enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the State plan, independently of any State enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, State audit privilege or immunity law.

EPA is approving the attainment demonstration and the EAP for the Northern Shenandoah Valley Ozone EAC Area. The modeling of the ozone and ozone precursor emissions from sources affecting the Northern Shenandoah Valley Ozone EAC Area demonstrates that the specified control strategies will provide for attainment of the 8-hour ozone NAAQS by December 31, 2007 and maintenance of that standard through 2012.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 17, 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, approving the attainment demonstration and the EAP for the Northern Shenandoah Valley Ozone EAC Area, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

I. Background

On May 17, 2005 (70 FR 28256), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of the attainment demonstration and the Early Action Plan (EAP) for the Washington County Ozone EAC Area. The formal SIP revision was submitted by the Maryland Department of the Environment on December 20, 2004 and supplemented on February 28, 2005. Other specifics of the State's SIP revision for the Washington County Ozone EAC Area, and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. On June 16, 2005, EPA received adverse comments on its May 17, 2005 NPR. A summary of the comments submitted and EPA's responses are provided in Section II of this document.

Comment: One commenter opposes the approval of the SIP revision for the Washington County Ozone EAC Area because the Area is in violation of the 8-hour ozone standard. The commenter also states that the SIP revision provides for the deferment of a nonattainment designation until a future date, potentially as late as December 31, 2007, and relieves the Area of obligations under Title I, part D of the CAA. Although the commenter is supportive of the goal of addressing proactively the public health concerns associated with ozone pollution, the commenter believes that EPA does not have the legal authority to defer effective dates of designations or to allow areas to be relieved of obligations under Title I, part D of the CAA while they are violating the 8-hour ozone standard, or are designated nonattainment of that standard.

Response: EPA first announced the EAC process in a June 19, 2002 letter from Gregg Cooke, Administrator, EPA Region VI to Robert Huston, Texas Commission on Environmental Quality, followed by a November 14, 2002 memorandum from Jeffrey R. Holmstead, Assistant Administrator, EPA's Office of Air and Radiation to the EPA Regional Administrators, entitled, “Schedule for 8-Hour Ozone Designations and its Effect on Early Action Compacts.” EPA formalized the EAC process in the designation rulemaking on April 30, 2004 (69 FR 23858). In the designation rule, EPA designated 14 EAC areas as nonattainment, but deferred the effective date of the designation until September 30, 2005. The EAC program gives local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard, provided the participating communities are serious in their commitment to control emissions from local sources earlier than the CAA would otherwise require. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental citizens' groups, a number of communities are discussing for the first time the need for regional cooperation in solving air quality problems that affect the health and welfare of its citizens. People living in these areas that achieve reductions in pollution levels sooner will enjoy the health benefits of cleaner air sooner than might otherwise occur. EPA believes this proactive approach involving multiple, diverse stakeholders is beneficial to the citizens of the area by raising awareness of the need to adopt and implement measures that will reduce emissions and improve air quality.

EPA disagrees with the comments that this action on the SIP revision for the Washington County Ozone EAC Area defers the nonattainment designation for this Area. In our May 17, 2005 NPR (70 FR 28256), EPA proposed approval of an attainment demonstration and EAP SIP revision for the Washington County Ozone EAC Area. This SIP revision includes an attainment demonstration which demonstrates attainment of the 8-hour ozone NAAQS in the Washington County Ozone EAC Area by December 31, 2007, and also demonstrates maintenance of the 8-hour NAAQS for five years following the attainment date. As noted in the proposed action, approval of the attainment demonstration and EAP constitutes one of several milestones that an area must meet in order to participate in the EAC process. While approval of this plan is a prerequisite for an extension of the deferred effective date of the designation of this Area, see 40 CFR 81.300(e)(3), neither the proposed approval of this SIP revision nor this final action approving the SIP revision purports to extend the deferral of the effective date of the nonattainment designation for this Area. In a separate rulemaking (69 FR 23858, April 30, 2004), EPA deferred the effective date of the air quality designations of all 14 EAC areas to September 30, 2005. In the April 30, 2004 final rule, EPA responded to comments received during the comment period for this final rule. In a separate proposed rule (70 FR 33409, June 8, 2005), EPA proposed to extend the deferral of the effective date of the air quality designations for these 14 EAC areas. EPA will consider comments regarding its legal authority in the final rule associated with the June 8, 2005 proposed rule.

Regardless of whether EPA's separate actions deferring the effective date of the nonattainment designation for this Area are appropriate, EPA sees no basis to disapprove the attainment and maintenance plan. The provisions of the statute generally provide that areas must demonstrate attainment and maintenance of the NAAQS. See, e.g. , CAA section 110(a)(1) (requiring areas to submit plans providing for “implementation, maintenance, and enforcement” of each NAAQS) and CAA section 172(c)(1) (requiring nonattainment areas to submit plans demonstrating attainment of the NAAQS). The commenter has provided no substantive reason why this plan does not demonstrate attainment and maintenance of the 8-hour standard. Therefore, this action approving the attainment demonstration and maintenance plan is appropriate.

EPA is approving the attainment demonstration and the EAP for the Washington County Ozone EAC Area. The modeling of the ozone and ozone precursor emissions from sources affecting the Washington County Ozone EAC Area demonstrates that the specified control strategies will provide for attainment of the 8-hour ozone NAAQS by December 31, 2007, and maintenance of that standard through 2012.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 17, 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, approving the attainment demonstration and the EAP for the Washington County Ozone EAC Area, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, wherever “we,” “our,” and “us” is used, we mean EPA.

On May 4, 2005, EPA proposed approval of the San Juan County EAC area's Clean Air Action Plan (CAAP), the photochemical modeling in support of the attainment demonstration and related control measures as revisions to the SIP submitted to EPA by the State of New Mexico. The proposal provides a detailed description of these revisions and the rationale for EPA's proposed actions, together with a discussion of the opportunity to comment. The public comment period for these actions closed on June 3, 2005. See the Technical Support Document (TSD) or our proposed rulemaking at 70 FR 23075 for more information. Two comments, one of which is adverse, were received on EPA's proposed approval of the San Juan County EAC area's CAAP and 8-hour ozone attainment demonstration for the EAC area.

Today we are approving revisions to the New Mexico SIP under sections 110 and 116 of the Act. The revisions demonstrate continued attainment and maintenance of the 8-hour ozone standard within the San Juan County EAC area. The revisions include the San Juan County EAC CAAP, photochemical modeling and related control measures. The intent of the SIP revisions is to reduce ozone pollution and thereby maintain the 8-hour ozone standard.

We received two comment letters on the May 4, 2005 proposed rulemaking for San Juan County.

Comment: One letter indicated that EPA provided an incorrect Web site for information and reports on ozone in San Juan County. The correct internet address is http://www.nmenv.state.nm.us/aqb/ozonetf/index.html. Additional information can be found at http://www.nmenv.state.nm.us/aqb/projects/ozone.html.

Response: Our proposed rulemaking and TSD incorrectly referred to this Web site as http://www.nmenv.state.nm.us/ozoneetf. We appreciate the correction and will also amend the TSD to reflect the correct internet address.

Comment: One letter provided both supportive and adverse discourse, commending the State of New Mexico for steps it has taken to improve air quality. The commenter opposes approval of the SIP revision because, should the area experience a violation of the 8-hour standard, the SIP revision (1) provides for the deferment of the area's nonattainment designation to as late as December 31, 2007, and (2) relieves the area of its obligations under Title I, Part D of the Act. The commenter contends that EPA does not have the legal authority to defer the effective date of an area's nonattainment designation nor to relieve areas of the obligations of Part D of Title I of the Act when areas are violating the standard and designated nonattainment.

Response: We appreciate the support expressed towards the State of New Mexico and towards the efforts made to ensure that the citizens in the San Juan County EAC area continue to breathe clean air. We continue to believe that the EAC program, as designed, gives San Juan County the flexibility to develop their own approach to maintaining the 8-hour ozone standard and believe San Juan County is serious in their commitment to control emissions from local sources. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental and citizen groups, San Juan County is implementing regional cooperation in solving air quality problems that affect the health and welfare of its citizens. People living in the San Juan County EAC area will realize reductions in pollution levels and enjoy the health benefits of cleaner air sooner than might otherwise occur.

In the April 2004 designation rule (69 FR 23858), the San Juan County EAC area was designated as attainment for the 8-hour ozone NAAQS. The commenter incorrectly asserts that this SIP revision provides for deferment of the designation of the area as nonattainment should the area experience a violation of the 8-hour ozone standard. Nor does EPA's approval of this SIP alter the applicability of the redesignation provision of the Act should the San Juan County EAC area experience a violation of the 8-hour ozone NAAQS in the future. Section 107(d)(3)(A) provides that EPA may redesignate an area “on the basis of air quality data, planning and control considerations, or any other air quality-related considerations.” Should the San Juan County EAC area experience a violation of the 8-hour ozone NAAQS in the future, EPA would consider these statutory factors in determining whether to redesignate the area to nonattainment for the 8-hour ozone NAAQS. The commenter is also incorrect that this SIP approval relieves the San Juan County EAC area of the requirements of Part D of Title I of the Act. These provisions apply to areas designated nonattainment. Because the San Juan County EAC area is designated attainment for the 8-hour ozone NAAQS, these provisions do not apply in the San Juan County EAC area.

EPA is approving the attainment demonstration, its related control measures, and the San Juan County EAC CAAP, and we are incorporating these revisions into the New Mexico SIP. We have determined that the voluntary control measures included in the attainment demonstration are surplus and are Federally enforceable once approved into the SIP. The modeling of ozone and ozone precursor emissions from sources in the San Juan County EAC area demonstrate that the area will continue to attain the 8-hour ozone NAAQS through December 31, 2007 and maintain that standard through 2012. We have reviewed the CAAP and the attainment and maintenance demonstration and determined that they are consistent with the requirements of the Act, EPA's policy, and the EAC protocol.

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

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Although Executive Order 13175 does not apply to this rule, tribal officials, through their participation in the Four Corners Ozone Task Force, have been active in the development of this rule. 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 under the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note), 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 do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 17, 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).)

I. Background

On May 17, 2005 (70 FR 28264), EPA published a notice of proposed rulemaking (NPR) for the State of West Virginia. The NPR proposed approval of the attainment demonstration and the Early Action Plan (EAP) for the West Virginia Eastern Panhandle Region EAC Area, which consists of Berkeley and Jefferson Counties. The formal SIP revision was submitted by the West Virginia Department of Environmental Protection on December 29, 2004. Other specifics of the State's SIP revision for the Eastern Panhandle Region Ozone EAC Area, and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. On June 16, 2005, EPA received adverse comments on its May 17, 2005, NPR. A summary of the comments submitted and EPA's responses are provided in Section II of this document.

Comment: One commenter opposes the approval of the SIP revision for the Eastern Panhandle Region Ozone EAC Area because the Area is in violation of the 8-hour ozone standard. The commenter also states that the SIP revision provides for the deferment of a nonattainment designation until a future date, potentially as late as December 31, 2007, and relieves the Area of obligations under Title I, subpart D of the CAA. Although the commenter is supportive of the goal of addressing proactively the public health concerns associated with ozone pollution, the commenter believes that EPA does not have legal authority to defer effective dates of designations or to allow areas to be relieved of obligations under Title I, part D of the CAA while they are violating the 8-hour ozone standard or are designated nonattainment of that standard.

Response: EPA first announced the EAC process in a June 19, 2002 letter from Gregg Cooke, Administrator, EPA Region VI to Robert Huston, Texas Commission on Environmental Quality, followed by a November 14, 2002 memorandum from Jeffrey R. Holmstead, Assistant Administrator, EPA's Office of Air and Radiation to the EPA Regional Administrators, entitled, “Schedule for 8-Hour Ozone Designations and its Effect on Early Action Compacts.” EPA formalized the EAC process in the designation rulemaking on April 30, 2004 (69 FR 23858). In the designation rule, EPA designated 14 EAC areas as nonattainment, but deferred the effective date of the designation until September 30, 2005. The EAC program gives local areas the flexibility to develop their own approach to meeting the 8-hour ozone standard, provided the participating communities are serious in their commitment to control emissions from local sources earlier than the CAA would otherwise require. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental citizens' groups, a number of communities are discussing for the first time the need for regional cooperation in solving air quality problems that affect the health and welfare of its citizens. People living in these areas that realize reductions in pollution levels sooner will enjoy the health benefits of cleaner air sooner than might otherwise occur. EPA believes this proactive approach involving multiple, diverse stakeholders is beneficial to the citizens of the area by raising awareness of the need to adopt and implement measures that will reduce emissions and improve air quality.

EPA disagrees with the comments that this action on this SIP revision for the Eastern Panhandle Region Ozone EAC Area defers the nonattainment designation for this Area. In our May 17, 2005, NPR (70 FR 28264), EPA proposed approval of an attainment demonstration and EAP SIP revision for the Eastern Panhandle Region Ozone EAC Area. This SIP revision includes an attainment demonstration which demonstrates attainment of the 8-hour ozone NAAQS in the Eastern Panhandle Region Ozone EAC Area by December 31, 2007, and also demonstrates maintenance of the 8-hour NAAQS for five years following the attainment date. As noted in the proposed action, approval of the attainment demonstration and EAP constitutes one of several milestones that an area must meet in order to participate in the EAC process. While approval of this plan is a prerequisite for an extension of the deferred effective date of the designation of this Area, see 40 CFR 81.300(e)(3), neither the proposed approval of this SIP revision nor this final action approving the SIP purports to extend the deferral of the effective date of the nonattainment designation for this Area. In a separate rulemaking (69 FR 23858, April 30, 2004), EPA deferred the effective date of the air quality designations of all 14 EAC areas to September 30, 2005. In the April 30, 2004, final rule, EPA responded to comments received during the comment period for this final rule. In a separate proposed rule (70 FR 33409, June 8, 2005), EPA proposed to extend the deferral of the effective date of the air quality designations for these 14 EAC areas. EPA will consider comments regarding its legal authority in the final rule associated with the June 8, 2005, proposed rule.

Regardless of whether EPA's separate actions deferring the effective date of the nonattainment designation for this Area are appropriate, EPA sees no basis to disapprove the attainment and maintenance plan. The provisions of the statute generally provide that areas must demonstrate attainment and maintenance of the NAAQS. See, e.g. , CAA section 110(a)(1) (requiring areas to submit plans providing for “implementation, maintenance, and enforcement” of each NAAQS) and CAA section 172(c)(1) (requiring nonattainment areas to submit plans demonstrating attainment of the NAAQS). The commenter has provided no substantive reason why this plan does not demonstrate attainment and maintenance of the 8-hour standard. Therefore, this action approving the attainment demonstration and maintenance plan is appropriate.

EPA is approving the attainment demonstration and the EAP for the West Virginia Eastern Panhandle Region Ozone EAC Area. The modeling of the ozone and ozone precursor emissions from sources affecting the Eastern Panhandle Region EAC Area demonstrates that the specified control strategies will provide for attainment of the 8-hour ozone NAAQS by December 31, 2007, and maintenance of that standard through 2012.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 17, 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, approving the attainment demonstration and the EAP for the Eastern Panhandle Region Ozone EAC Area, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This is a summary of the Commission's Order on Reconsideration (Order) in CC Docket Nos. 96-98, 96-115, 99-273, FCC 05-93, adopted April 29, 2005, and released May 3, 2005. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-5563, or via e-mail at FCC@BCPIWEB.COM. It is also available on the Commission's Web site at http://www.fcc.gov.

1. Section 251(b)(3) of the Act imposes on LECs the “duty to permit all [competing] providers [of telephone exchange service and telephone toll service] to have nondiscriminatory access to * * * directory assistance.” In the Local Competition Second Report and Order (61 FR 47284-01, September 6, 1996), the Commission concluded that section 251(b)(3) requires LECs to provide such competing providers with access to DA equal to that which the LECs provide to themselves, and that LECs treat all such competitors equally.

2. The Commission affirmed this conclusion in the subsequent SLI/DA Order on Reconsideration and Notice (64 FR 51910-01, September 27, 1999) and determined that nondiscriminatory access under section 251(b)(3) of the Act requires that all LECs provide competing providers of telephone exchange service and toll service with nondiscriminatory access to the LECs' directory assistance databases. The Commission further acknowledged that “requesting carriers would not have nondiscriminatory access to operator services and directory assistance under section 251(b)(3) unless those carriers have access to adjunct features such as rating tables and customer information databases.” SBC filed a petition for clarification or reconsideration of some of the Commission's conclusions in the SLI/DA Order on Reconsideration and Notice (64 FR 51910-01, September 27, 1999).

3. In the SLI/DA First Report and Order (66 FR 10965-02, February 21, 2001), the Commission explained that section 251(b)(3) provides competing DA providers with the same rights and obligations regarding DA data as it does to the providing LECs and concluded that “section 251(b)(3)'s requirement of nondiscriminatory access to a LEC's DA database thus does not contemplate continuing veto power by the providing LEC over the uses to which DA information is put.” SBC and BellSouth filed a joint petition for reconsideration and/or clarification of certain conclusions made by the Commission in the SLI/DA First Report and Order (66 FR 10965-02, February 21, 2001).

4. In this Order, we address a joint petition for reconsideration filed by SBC and BellSouth, and a separate petition for reconsideration filed by SBC. We further clarify conclusions made in the SLI/DA First Report and Order (66 FR 10965-02, February 21, 2001) and SLI/DA Order on Reconsideration and Notice (64 FR 51910-01, September 27, 1999). SBC/BellSouth request that the Commission reconsider its decision and restrict the purposes for which competing DA providers may use DA information, or alternatively establish that LECs may contractually impose their own restrictions. In particular, SBC/BellSouth argue that restrictions should include limits on resale and a prohibition on use for purposes other than DA and DA-like services, such as sales solicitation and telemarketing.

5. Contractual Restrictions on the Use of DA Information. We deny SBC/BellSouth's petition for reconsideration of our determination regarding the scope of competing DA providers' access to DA databases. As we have previously noted, “[s]ection 251(b)(3) does not, by its terms, limit the use of directory assistance data solely to the provision of directory assistance.” As we have previously concluded, “nondiscriminatory access” under section 251(b)(3) means that providing LECs must offer access equal to that which they provide themselves. We recognize that further restrictions on resale and other such use also might substantially increase the costs of providing competitive DA services, thereby reducing the benefits to consumers of competitive DA providers in the market.

6. We also agree with commenters that argue that the Commission should not provide LECs with the authority to impose their own restrictions on the purposes for which competing DA providers may use DA information. We find that the imposition of such contractual restrictions by the providing LEC is inconsistent with the nondiscriminatory access requirements of section 251(b)(3).

7. We clarify, however, that no language in the SLI/DA First Report and Order (66 FR 10965-02, February 21, 2001) was ever intended to grant competing DA providers greater latitude in their use of DA data than that permitted to providing LECs, or to permit competing DA providers to use that data in a manner inconsistent with Federal or state law or regulation. We again note that all qualified DA providers, both providing LECs and competing DA providers, are subject to state limitations regarding use of accessed directory information ( e.g. , by prohibiting the sale of customer information to telemarketers), as long as those state regulations are consistent with the nondiscrimination requirements of section 251(b)(3) of the Act.

8. We also note that section 51.217(c)(3) of the Commission's rules already balances the Commission's interests in ensuring nondiscriminatory access to DA, and in protecting customer privacy. The section indicates that even though a LEC shall not provide access to the unlisted number of its customers, it must “ensure that access is permitted to the same directory information, including customer name and address, that is available to its own directory assistance customers.” We clarify, however, that although competing DA providers may be entitled to nondiscriminatory access to DA information, all competing DA providers must adhere to the disclosed privacy requests of LEC customers for all DA information obtained pursuant to section 251(b)(3). This means that, to the extent competing DA providers have received notice of a LEC customer's privacy requests, they must comply with such requests, and may not use or disclose any DA information that a LEC's customer has requested that the LEC not use or make available.

9. We grant SBC/BellSouth's request insofar as they ask the Commission to agree that there is no statutory basis for allowing DA providers to use DA listings obtained pursuant to section 251(b)(3) of the Act for directory publishing. SBC/BellSouth submit that permitting such use would allow competing DA providers to avoid the statutory distinctions between directory assistance and directory publishing indicated by the separate treatment of these services under section 251(b)(3) and section 222(e) of the Act. We agree, and note that in the SLI/DA First Report and Order (66 FR 10965-02, February 21, 2001), the Commission found that although the underlying databases for the two services are similar, they are not identical, and any seeming convergence between DA and directory publishing is not strong enough at this time to obviate the distinctions drawn by Congress in the Act.

10. Nondiscriminatory Access to Local DA Listings Acquired from Third Parties. We are not persuaded by SBC/BellSouth's assertion that in instances where more than one facilities-based LEC serves a local area, LECs should not be required to provide nondiscriminatory access to local DA listings purchased from third parties. Rather, we agree that competitive DA providers are entitled to receive nondiscriminatory access to a LEC's entire local DA database pursuant to section 251(b)(3) of the Act. We reaffirm that even though the Commission has declined to require LECs to provide nondiscriminatory access to nonlocal DA data, it has consistently required that LECs provide nondiscriminatory access to all of their local DA database listings.

11. Nondiscriminatory Access to Operator Services, Directory Assistance and Features Adjunct to These Services. Finally, we deny SBC's separate petition for reconsideration of the Commission's determination regarding the scope of competing DA providers' access to operator services (OS), DA and the features adjunct to these services. SBC specifically requests that the Commission find that section 251(b)(3) does not require that LECs provide “unbundled” access to all of the facilities used to provide OS/DA services, including adjunct features and software.

12. We acknowledge that carriers are no longer required to provide OS/DA services as unbundled network elements (UNEs) under section 251(c)(3). We note, however, that in coming to the conclusion that UNE access would no longer be necessary under that section, the Commission specifically recognized the continued obligation to provide nondiscriminatory access to OS/DA under section 251(b)(3). We reaffirm the Commission's determination that requesting carriers would not have nondiscriminatory access to operator services and directory assistance under section 251(b)(3) unless those carriers have access to these services in their entirety, including access to any adjunct features such as rating tables and customer information databases necessary to allow competing providers full use of these services.

13. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4, 201, 222, and 251 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 201, 222, and 251, this Order on Reconsideration is adopted.

14. It is further ordered that Qwest Corporation's Request to Withdraw its Pending Petition for Reconsideration is granted.

15. It is further ordered that the above mentioned Petition for Clarification or, in the Alternative, Reconsideration filed by SBC/BellSouth is granted in part and denied in part, to the extent discussed herein.

16. It is further ordered that SBC Communications Inc.”s Request to Withdraw Issue in Its Pending Petition for Reconsideration is granted.

17. It is further ordered that the Petition for Clarification or, in the Alternative, Reconsideration filed by SBC is denied, to the extent discussed herein.

This is a synopsis of the Commission's Report and Order, MB Docket No. 05-81, adopted July 27, 2005, and released July 29, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, or via e-mail qualexint@aol.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a synopsis of the Commission's Report and Order, MB Docket No. 02-109, adopted July 27, 2005, and released July 29, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, (800) 378-3160, or via the company's Web site, http://www.bcpiweb.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A).

This is a synopsis of the Commission's Report and Order , MB Docket No. 05-137, adopted July 27, 2005, and released July 29, 2005. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com . The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

This is a synopsis of the Commission's Report and Order , MB Docket No. 02-294, adopted July 27, 2005, and released July 29, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (800) 378-3160, or via the company's Web site, http://www.bcpiweb.com . The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A).

Channel 264C can be reallotted to Woodruff in compliance with the Commission's minimum distance separation requirements with a site restriction of 65.8 kilometers (40.9 miles) south at petitioner's requested site. The coordinates for Channel 264C at Woodruff are 40-56-13 North Latitude and 111-00-35 West Longitude. To accommodate the reallotment, Channel 254C3 can be substituted for vacant Channel 265C3 at Reliance at its presently authorized site. The coordinates for Channel 254C3 are 41-40-09 North Latitude and 109-11-47 West Longitude. Channel 261A can be allotted to Price with a site restriction of 6.0 kilometers (3.7 miles) south at petitioner's requested site. The coordinates for Channel 261A at Price are 39-32-42 North Latitude and 110-48-56 West Longitude. The reference coordinates can be modified for vacant Channel 260A at Fountain Green without the imposition of a site restriction. The modified reference coordinates for Channel 260A at Fountain Green are 39-37-42 North Latitude 111-38-28 West Longitude.

The FM Table of Allotments lists Channel 265A at Price, Utah in lieu of Channel 265C2 at Price, Utah. On October 24, 2002, Station KWSA was granted a construction permit to specify operation on Channel 265C2 at Price, Utah. See BMPH-20020726ABU.

This is a synopsis of the Commission's Report and Order , MB Docket No. 04-19, adopted July 27, 2005, and released July 29, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com . The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a) (1) (A).

This is a summary of the Commission's Report and Order , MB Docket No. 04-411, adopted July 27, 2005, and released July 29, 2005. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20054, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Channel 249A can be allotted to Mason in compliance with the Commission's minimum distance separation requirements with a site restriction of 9.4 kilometers (5.8 miles) east of Mason at reference coordinates 39-20-57 NL and 84-12-08 WL. Channel 249A can also be allotted to Salt Lick in compliance with the Commission's minimum distance separation requirements with a site restriction of 6.6 kilometers (4.1 miles) northeast of Salt Lick at reference coordinates 38-10-15 NL and 83-34-31 WL. Channel 276A can also be allotted to Georgetown in compliance with the Commission's minimum distance separation requirements with a site restriction of 12.1 kilometers (7.5 miles) east at reference coordinates 38-52-14 NL and 83-45-55 WL. On May 17, 2004, First Broadcasting Capital Partners, LLC became the licensee of Stations WOXY(FM) and WAXZ(FM) pursuant to assignment of license applications. See File Nos. BALH-20040126AMT and BALH-20040127ADR.

This document also dismissed a counterproposal filed Gateway Radio Works, Inc., licensee of Station WIVY(FM), Channel 242A, Morehead, Kentucky, requesting the allotment of Channel 249A at Livingston, Kentucky, as its first local service. To accommodate this proposed allotment, the counterproposal also requested the reclassification of Station WJXB-FM, Channel 248C, Knoxville, Tennessee as a C0 facility because the station operates below minimum Class C facilities; and the reallotment of Channel 242A from Morehead to Salt Lick, Kentucky, as its first local service and the modification of the Station WIVY(FM) license to specify Salt Lick as its community of license.

The Federal Communications Commission has received OMB approval for revised information collection, OMB Control Number 3060-0750, Children's Television Obligation of Digital Television Broadcasters, MB Docket No. 00-167; FCC 04-221. This rule was published at 70 FR 25 (January 3, 2005), correction published at 70 FR 9876 (March 1, 2005). Through this document, the Commission announces that OMB approval for OMB Control Number 3060-0750 was received on July 27, 2005. The effective date for rule 47 CFR 73.671(c)(5) is September 19, 2005.

Pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13, an agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Notwithstanding any other provisions of law, no person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Questions concerning the OMB control number and expiration date should be directed to Cathy Williams, Federal Communications Commission, (202) 418-2918 or via the Internet at Cathy.Williams@fcc.gov.

The Federal Communications Commission has received OMB approval for the revised information collection, OMB Control Number 3060-0980, Implementation of the Satellite Home Viewer Extension and Reauthorization Act of 2004, Procedural Rules, FCC 05-81. FCC 05-81, Procedural Rules, which revises the local into local notification rule and creates the new rule for elections in markets in which significantly viewed signals are carried, were published in 70 FR 21669, April 27, 2005. Through this document, the Commission announces that OMB approval for OMB Control Number 3060-0980 was received on June 14, 2005 and was published at 70 FR 41735, July 20, 2005. The effective date for the rules in 47 CFR 76.66(d)(2) and (d)(5) is August 15, 2005.

Pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13, an agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Notwithstanding any other provisions of law, no person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid control number.

NHTSA issued the original version of Federal Motor Vehicle Safety Standard (FMVSS) No. 101, Controls and Displays , in 1967 (32 FR 2408) as one of the initial FMVSSs. The standard applies to passenger cars, multipurpose passenger vehicles (MPVs), trucks, and buses. 1 The purpose of FMVSS No. 101 is to assure the accessibility and visibility of motor vehicle controls and displays under daylight and nighttime conditions, in order to reduce the safety hazards caused by the diversion of the driver's attention from the driving task, and by mistakes in selecting controls.

At present, FMVSS No. 101 specifies requirements for the location (S5.1), identification (S5.2), and illumination (S5.3) of various controls and displays. It specifies that those controls and displays must be accessible and visible to a driver properly seated wearing his or her safety belt. Table 1, “Identification and Illumination of Controls,” and Table 2, “Identification and Illumination of Displays,” indicate which controls and displays are subject to the identification requirements, and how they are to be identified, colored, and illuminated.

On September 23, 2003, NHTSA published in the Federal Register (68 FR 55217)  2 a notice of proposed rulemaking (NPRM) to modernize FMVSS No. 101. Two primary concerns were behind the proposal. The first was the standardization of identifying symbols for additional controls and displays, and the second was updating identification requirements for advanced multi-function controls with remote displays. In addition, the NPRM sought to harmonize FMVSS No. 101 with a draft Global Technical Regulation on controls and displays that the United States and Canada had sponsored jointly. Each of these issues is discussed below.

In the NPRM, we tentatively concluded that requiring vehicle controls and displays to be consistently identified by means of an internationally recognized set of graphics in all vehicles would promote safety. We believed that this was particularly important as the controls and displays in vehicles increase in number and complexity and that the consistent use in all new motor vehicles of a single symbol for each function would increase the recognition of that function among all drivers. Moreover, the internationally recognized symbols are independent of any particular language.

The function of FMVSS No. 101 is not to limit or regulate the number of controls, telltales and indicators in vehicles but to ensure that when a regulated control, telltale, or indicator is provided, it is properly identified. Whether that identification is a word, an abbreviation, or a graphic, it is a means of representing a specific vehicle function or condition. We tentatively concluded that, in response to the increase in the number of controls in vehicles, it would be desirable to require each control to be labeled with the same symbol in every vehicle in order to minimize driver confusion and distraction. We believed that, after a period of learning by drivers, symbols would be generally recognized as to the function or condition they represent. The foregoing considerations led us to propose the use of graphic symbols that were, with a few exceptions (that were discussed in the NPRM), the same as that specifically established by the International Standards Organization (ISO) for controls and displays in motor vehicles, ISO 2575:2000.

In the NPRM, we tentatively concluded that there was a need to amend FMVSS No. 101 in response to the development and increased use of advanced multi-function controls linked to a display screen remote from the control itself to convey information to drivers about the status of multiple vehicle systems and means of controlling those systems. This was partially in response to a petition for rulemaking from the Alliance of Automobile Manufacturers (Alliance). We stated our belief that FMVSS 101's current requirement that the identification for controls “be placed on or adjacent to the control” restricts unnecessarily the design of these types of systems. Accordingly, we proposed two new definitions and a limited exclusion from the adjacency requirement to accommodate those systems. The proposed definitions were:

Multi-function control means a control through which the driver may select, and affect the operation of, more than one vehicle function.

Multi-task display means a display on which more than one message can be shown simultaneously.

The proposed exclusion to the adjacency requirement of S5.1.3 was:

S5.1.4 The requirement of S5.1.3 does not apply to a multi-task control, provided:

(a) The control is depicted in an associated multi-task display,

(b) The associated multi-task display is visible to the driver under the conditions of S5.6.1 and S5.6.2, and

(c) All of the vehicle systems for which control is possible from the multi-task control are identified in the associated multi-task display. Subfunctions of the available systems need not be shown on the top-most layer of the multi-task display.

Another topic of the NPRM was international harmonization of controls and displays standards. NHTSA consulted with Transport Canada (Canada's counterpart to the U.S. Department of Transportation) in the late 1990s about Canada's controls and displays standard, i.e. , Canadian Motor Vehicle Safety Standard 101. The joint goal of NHTSA and Transport Canada in these talks was to develop potential revisions to their respective standards so that, consistent with safety needs, they would be better organized, easier to understand, and consistent with the positions of the U.S., Canada, and European standards organizations. The NPRM was based in part on that collaboration.

The United States participates in the United Nations/Economic Commission for Europe World Forum for Harmonization of Vehicle Regulations (also known as Working Party 29 or WP. 29) under a 1998 Agreement known as the 1998 Global Agreement. The 1998 Global Agreement provides for the establishment of global technical regulations (GTRs) regarding the safety, emissions, energy conservation and theft prevention of motorized wheeled vehicles, equipment and parts. The Agreement contains procedures for establishing global technical regulations by either harmonizing existing regulations or developing new ones.

On July 18, 2000, in anticipation of the 1998 Global Agreement's entry into force, NHTSA published a request for public comments on the agency's list of preliminary recommendations of standards or aspects of standards for consideration by the Contracting Parties to the Agreement in prioritizing the development and establishment of GTRs under the Agreement (65 FR 44565). One of NHTSA's preliminary recommendations in the notice concerned controls and displays. In March 2002, WP. 29 adopted a work program of initial priorities for development of GTRs under the 1998 Global Agreement that included controls and displays. The regulatory text proposed in the NPRM was essentially the same as the draft GTR at that time.

The United States continues to participate in the development of a GTR on controls and displays. At such time as there is a final GTR on controls and displays, we will consider it in accordance with the 1998 agreement.

In response to the NPRM, NHTSA received comments from: AAA; Advocates for Highway and Auto Safety; Alliance of Automobile Manufacturers (Alliance); American Honda Motor Co., Inc.; American Trucking Associations (ATA); Applied Safety and Ergonomics, Inc.; Association of International Automobile Manufacturers, Inc. (AIAM); Bendix Commercial Vehicle Systems LLC; BMW Group; Blue Bird Company; Fed Ex; General Motors North America; Hino Motors, Ltd.; Honda Motor Company, Ltd. (in Tokyo); ISO TC22/SC13 WG5; Mr. Mac B. Johnson; National Automobile Dealers Association; Public Citizen; Ms. Barb Sachau; Truck Manufacturers Association (TMA); Mr. Frank D. Werner; and Western Ergonomics.

Most of the commenters addressed the proposal to include an expanded set of controls, telltales, and indicators in Tables 1 and 2, and the identification to be used for those items. Many commenters opposed the proposed expansion of the items to be regulated and identifying symbols, and provided detailed comments on many of the proposed symbols. Comments were also received on the issue of regulating multi-function controls and multi-task displays, especially in relation to the S5.13 requirement that identifications for controls, telltales and indicators must be placed “on or adjacent to the telltale, indicator or control that it identifies.” The comments addressing this issue generally were in favor of it, with several recommending minor changes to the proposed regulatory text.

After considering the public comments, we have decided to adopt a provision to provide a limited exclusion for multi-function controls from the standard's requirement that identification be “on or adjacent” to the control. We made some changes to the proposed provision in light of the comments.

We are also extending FMVSS No. 101's display requirements to vehicles with GVWRs of 4,536 kg (10,000 pounds or greater). The compliance date for this extension is September 1, 2013.

We decided not to expand at this time the symbols or other items listed in FMVSS No. 101, other than adding items already included in other FMVSSs. While we may revisit this issue in a future rulemaking, we would want to conduct additional analyses and possibly research relating to issues raised by the commenters. We will continue to regulate the same controls, telltales and indicators as are presently specified in Tables 1 and 2 in FMVSS No. 101 or in another Federal motor vehicle safety standard, and to specify the same symbols or words. The format of the tables is changed so that in this final rule, Table 1 specifies the identifiers for controls, telltales and indicators that have color or illumination requirements, while Table 2 specifies the identifiers for controls, telltales and indicators that have no color or illumination requirements.

The primary issues raised by NHTSA in the NPRM, the public comments, and NHTSA's response to the comments, are discussed below.

In S4, Definitions , after considering all public comments received on each of the proposed new definitions, NHTSA has adopted as final the following new or amended definitions:

1. “Adjacent”—At present, the term “adjacent” appears in FMVSS No. 101's “Identification” section at S5.2.1(a): “The identification appears on or adjacent to the control” and at S5.2.3: “The identification required or permitted by this section shall be placed on or adjacent to the display that it identifies.” The word “adjacent” is not presently defined in FMVSS No. 101. In the past, the term “adjacent” has been the subject of several requests for interpretation of what “adjacent” means for controls that are identified by images that appear on a digital display screen. In the September 2003 NPRM, we proposed to define “adjacent” as:

Adjacent, with respect to a symbol identifying a control, telltale or indicator, means:

(a) The symbol is in close proximity to the control, telltale or indicator; and

(b) No other control, telltale, indicator, identifying symbol or source of illumination appears between the identifying symbol and the telltale, indicator, or control that the symbol identifies.

We explained that this definition of “adjacent” would put into the regulatory text the definition of “adjacent” that we have used in FMVSS No. 101 interpretation letters such as a June 8, 2000 letter to an unidentified company, and a February 27, 2001 letter to Mazda North American Operations.

In its comments, Western Ergonomics, Inc. (WEI) suggested that the term “close proximity” (used in paragraph (a) of the definition) be defined: “* * *in terms of the visual angle between symbol and control, as defined relative to driver's eye location.” We have decided not to adopt this suggestion. We believe the meaning of “close proximity” is sufficiently clear without additional language. Therefore, the definition of “adjacent,” as proposed in the NPRM, is adopted in the final rule.

2. “Common space”—At present, “common space” is used but not defined in FMVSS No. 101. In the September 2003 NPRM, we proposed to define “common space” as: “an area on which more than one telltale, indicator, identifier or other message may be displayed, but not simultaneously.” The proposed definition was intended to address designs in which a “common space” is used to display more than one warning, message or identification, but not simultaneously. No commenter commented on the proposed definition and, in this final rule, we adopt as final, the definition of “common space” proposed in the NPRM.

3. “Control”—At present, FMVSS No. 101 regulates both hand-operated controls and foot-operated controls. However, the requirement for foot-operated controls are very limited. Specifically, FMVSS No. 101 requires that certain foot-operated controls, i.e. , those for service brake, accelerator, clutch, high beam, windshield washer and windshield wiper, must be operable by the driver.

In the September 2003 NPRM, we proposed to limit the term “control” (and thus FMVSS No. 101 itself), to hand-operated controls because we were unaware of any current vehicles whose high beam, or windshield washer or wiper controls are foot-operated and because we saw no need, as a practical matter, to include a requirement that service brakes, accelerators, and clutches be operable by the driver.

Federal Express and the American Trucking Association (ATA) did not agree with NHTSA's distinguishing between hand and foot controls, as “a control is a control regardless of hand or foot activated.” Noting that while accelerators and clutches do not always have indicators on the dash, ATA stated that a truck service brake does have an indicator light/release light on the dash—some are hand and some are foot-activated, but both are activated by the driver and deactivated by the driver.

NHTSA notes that there is a distinction between “indicators” and “controls.” It is the service brake indicator that must always appear “in view of the driver.”

We further note that defining “controls” as hand-operated makes repeating “hand-operated” unnecessary whenever the word “control” is used in FMVSS No. 101. We received no public comment informing us of any current vehicles with high beam, windshield washer or wiper controls that are foot operated. We continue to see no need, as a practical matter, to include a requirement that service brakes, accelerators, and clutches be operable by the driver. Therefore, in this final rule, NHTSA adopts the definition of “control” proposed in the NPRM.

4. “Indicator”—In the September 2003 NPRM, we proposed to use “indicator” to replace the term “gauge” because “gauge” connotes an analog display whereas “indicator” does not. We proposed to define “indicator” as “a device that shows the magnitude of physical characteristics that the instrument is designed to sense.” No commenter addressed the proposed definition, and in this final rule, NHTSA adopts the definition of “indicator” proposed in the NPRM.

5. “Multi-function control” and “multi-task display.” As discussed earlier, in the September 2003 NPRM, we proposed definitions of “multi-function control” and “multi-task display” to address advanced vehicle designs that use controls that select several different vehicle functions and display information about those functions on a display that is remote from the control. A multi-function control was proposed to be defined as: “a control through which the driver may select, and affect the operation of, more than one vehicle function.” A multi-task display was proposed to be defined as: “a display on which more than one message can be shown simultaneously.”

6. “Telltale”—In the September 2003 NPRM, we proposed to define “telltale” as an “optical signal that, when illuminated, indicates the actuation of a device, a correct or improper functioning or condition, or a failure to function.” No commenter addresses the proposed definition, and in this final rule, NHTSA adopts the definition of “telltale” proposed in the NPRM.

At present, S5 of FMVSS No. 101 excludes vehicles of 4,536 kg (10,000 pounds) or greater GVWR from its location, illumination, and color requirements for displays. We proposed to extend the standard's display requirements to these vehicles to ensure that drivers are able to see and identify their displays as easily as do drivers of lighter vehicles.

In response to the NPRM, the American Trucking Association (ATA) recommended that vehicles with GVWRs of 4,536 kg (10,000 pounds) or greater continue to be excluded from the display requirements of FMVSS No. 101. ATA commented that NHTSA did not present data regarding the safety benefits of enacting the proposed rules and that the compliance costs are not trivial:

While we have considered ATA's comment, we continue to believe that there is a safety need for drivers of heavier vehicles to see and identify their displays, just as there is for drivers of lighter vehicles.

We note, however, that since (for reasons discussed below) Tables 1 and 2 include far fewer controls, telltales and indicators than proposed in the NPRM (and none of the ones exclusive to vehicles of 4,536 kg GVWR and over), the costs of meeting the requirements in this final rule are lessened considerably. Moreover, to address concerns about costs, since vehicles of 4,536 kg (10,000 pounds) or greater GVWR have longer redesign cycles than do lighter passenger vehicles, we are providing an eight-year lead time for heavy vehicle compliance with the requirements for telltales and indicators.

The present language of FMVSS No. 101 at S.5.3.3(a) states that means shall be provided for making controls, gauges, and the identification of those items “visible to the driver under all driving conditions.” In the September 2003 NPRM, we proposed the narrower language “visible * * * under daylight and nighttime conditions” because under some extreme lighting conditions (e.g. driving directly into a sunrise or sunset), it is virtually impossible to make illuminated items (even after adjusting the level of illumination) or non-illuminated items visible to the driver. NHTSA stated its belief that, for the most part, the instances in which the driver cannot see symbols are of short duration, and therefore would not cause a safety problem if the telltales and/or their identifiers were not visible to the driver during that short time period.

Commenting on the NPRM, and addressing illumination in general, Mr. Mac Johnson commented that paragraph (e) of S5.3.1 Timing of illumination should be “liberalized” to permit the telltales to be illuminated at more times than just the malfunctions or vehicle conditions the telltales are designed to indicate, or when the propulsion system is activated. According to Mr. Johnson, FMVSS No. 101 should be expanded to allow the manufacturer the option of including a “manual test” of any telltale or group of telltales while electrical power is on. Being able to test subsets of all the telltales allows the driver to see where each is located and what each looks like. NHTSA has accommodated Mr. Johnson's suggestion by deleting the words “upon propulsion system activation” from S5.3.1.(e).

Hino Motors asked for an exclusion from illumination requirements when the control is “located on the floor, floor console, steering wheel, or steering column, or in the area of windscreen [windshield] header, or to controls for heating and air conditioning system if the system * * * does not direct air directly upon the windscreen.” We note that this exclusion was included in the NPRM at S5.3.1(a) at p. 55227 in the Federal Register . In this final rule, Hino Motors will find the requested exemption for the specified controls from the illumination requirements at S5.3.1(a) in the second sentence.

TMA asked NHTSA to clarify if it will continue to allow, for controls and indicators, adjustment of brightness to a level that is not visible to a seated driver. NHTSA's response is that the language at S5.3.3(b)(3) allowing “levels of brightness at which [controls, gauges and the identification of those items] are not visible” was removed to clean up the regulatory text. The language at S5.3.3(b)(3) requires two levels of brightness, and describes those required levels. It should be clear that the manufacturer may provide as many additional levels of brightness as it desires. However, the language was of long standing in FMVSS No. 101, so to avoid confusion, in this final rule, the language is restored at S5.3.2.2(d).

Blue Bird recommended that “every illumination system contain manual controllability, even though an automatic system is incorporated.” We note that, as discussed above, we are including certain language in S5.3.2.2(d) that is currently part of the standard but was omitted from the proposal. S5.3.2.2(d)(1) states: “If the level of brightness is adjusted by automatic means to a point where those items or their identification are not visible to the driver, means shall be provided to enable the driver to restore visibility.”

After considering the comments, we are adopting the proposed language at S5.3.2.1 that means shall be provided for illuminating the indicators, identifications of indicators and identifications of controls listed in Table 1 to make them “visible to the driver under daylight and nighttime driving conditions.”

In the NPRM we proposed two tables, each of which would include both controls and displays. In Table 1, we proposed to specify symbols, color requirements, and whether illumination is required for controls, telltales, and indicators for which we proposed illumination or color requirements. We noted that the proposed requirement reflected requirements already in FMVSS No. 101, Canadian Motor Vehicle Safety Standard No. 101, ECE 78/316, or are included in the draft GTR on “Hand controls, telltales, and indicators.”

We also proposed Table 2, which would specify symbols for controls, telltales, and indicators other than those listed in proposed Table 1. Table 2 would not include color or illumination requirements. The symbols in each of the proposed tables were essentially identical to the ISO symbols, with a few exceptions. No English words or abbreviations appeared in the proposed tables, except that we proposed that the brake malfunction telltales include the word “Brake” for five years for light vehicles and eight years for heavy vehicles.

The proposed expansion of the FMVSS No. 101 tables was the subject of most of the public comments. In general, the commenters addressing this issue recommended that the agency not expand Tables 1 and 2.

Most of the commenters addressing the proposed tables generally stated the view that symbols would not be as well understood by the driver as English words. Some commenters objected to the number of vehicle functions for which we proposed to require a specific symbol.

After considering the public comments for this final rule, we have decided not to expand at this time the symbols or other items listed in FMVSS No. 101, other than including some items already required by other FMVSSs. While we may revisit this issue in a future rulemaking, we would want to conduct additional analyses and possibly research relating to issues raised by the commenters.

We have, however, decided to adopt the format of the tables proposed in the NPRM, to make identifiers easier to find in the tables. Therefore, in this final rule, for controls, telltales, and indicators, Table 1 specifies identifiers, color requirements and whether illumination is required for a control, telltale, or indicator, and specifies which have illumination or color requirements. Table 2 specifies identifiers for controls, telltales, and indicators other than those listed in Table 1. No color or illumination requirements are specified in Table 2. The final rule at S5.2.3 states: “Supplementary symbols, words, or abbreviations may be used at the manufacturer's discretion for the purpose of clarity in conjunction with any symbol, word, or abbreviation specified in Table 1 or Table 2.”

In addition, we are addressing comments made about the following individual symbols proposed in Table 1 or Table 2 in the NPRM:

TMA commented on the “windshield defrosting and defogging system” and “rear window defrosting and defogging system” icons. TMA stated that these “illuminated telltale[s] should be green, not yellow.” NHTSA notes that Table 1 of this final rule specifies identification requirements for controls for the windshield defrosting and defogging system and rear window defrosting and defogging system. (These controls are included in the existing FMVSS No. 101). For these controls, NHTSA specifies illumination, but not a color.

TMA also commented on tire malfunction indicators, including ones indicating low pressure. It stated that provision should be made for a pictogram of a truck or tractor as well as a car.

We note that as part of the agency's April 8, 2005 final rule (67 FR 18136) on Tire Pressure Monitoring Systems (TPMS), we adopted a symbol depicting a car for low tire pressure telltales which identify which tire has low pressure. That rule requires TPMS on “new passenger cars, multi-purpose passenger vehicles, trucks and buses with a gross vehicle weight rating (GVWR) of 4,536 kg (10,000 pounds) or less, except those with dual wheels on an axle.” Thus, there are presently no TPMS requirements for buses or trucks over 4,536 kg, although TPMS could be provided voluntarily for these vehicles. We agree that different identification might be appropriate for telltales for heavy vehicles. Accordingly, we are adding a footnote indicating that the standard's requirements for telltales relating to TPMS apply only to vehicles subject to the TPMS standard.

TMA commented that requiring the odometer to spell out “MILES” instead of “Mi” is overly restrictive. In this final rule, in Table 2, the odometer must specify “kilometers or km,” if the unit of measurement is the kilometer. Otherwise, no identifier is required.

The American Trucking Association (ATA) stated that the automatic vehicle speed indicator does not account for adaptive cruise control systems, which maintain headway in either time or distance from a lead vehicle. Automatic vehicle speed is a control specified in Table 1 of this final rule. The control must be illuminated. In some cases, adaptive cruise controls are not turned on or off by the driver, but are regulated by the vehicle's computer system. NHTSA believes that there is no ambiguity about the systems to which the automatic vehicle speed control entry applies, since the entry is of long standing. Adaptive cruise controls were developed after the automatic vehicle speed control entry was created. Thus, the automatic vehicle speed control entry in Table 1 does not apply to adaptive cruise controls.

ATA also commented that the heating and/or air conditioning fan symbol does not address the need for engine fan switches, which can be controlled by the operator. NHTSA notes that in this final rule, the control is clearly specified in Table 1 as “heating and/or air conditioning fan,” not engine fan. Thus, the Table 1 requirements apply to controls for the fan regulating the vehicle interior's heating and/or air conditioning. The Table 1 requirements do not apply to engine fan controls. Nothing in this final rule prevents manufacturers from labeling the engine fan control as they see fit.

Western Ergonomics, Inc. stated that allowing speedometers to be indicated in km/h as an option, rather than as a requirement (with MPH) is a “mistake,” since many American vehicles are driven in Canada where the speed limits are designated in km/h. We note that although many American cars are driven in Canada, most of them are not. Since speed limits in the U.S. are expressed in MPH, in this final rule we are only requiring speedometers to be indicated in MPH. However, the rule permits manufacturers, at their option, to designate speedometers in MPH and km/h. Americans who drive in Canada (and other parts of the world that use kilometers) can look for the km/h designation in the speedometers before purchasing, leasing, or renting motor vehicles.

At present, FMVSS No. 101 specifies that a common space may be used to display messages from any source, subject to several requirements. One of the current requirements is that the telltales for the brake, high beam, turn signal, and safety belt (telltales of particular safety significance) may not be shown in the “common space.” This requirement ensures that these telltales, if activated, are always visible to the driver.

In the September 2003 NPRM, we proposed to expand the list of telltales (of particular safety significance) that could be in a common space, but could not share a common space with other specified telltales of particular safety significance, so the list of telltales would include: The telltales for any brake system malfunction; front air bag malfunction; side air bag malfunction; low tire pressure; passenger air bag off; high beam; turn signal; and seat belt. We proposed in the NPRM that if one of these telltales is activated, it is required to displace any other symbol or message in that common space while the underlying condition that caused the telltale's activation exists.

We did not receive any public comments on the proposed changes to the common space for displaying multiple messages. Therefore, in this final rule, we are adding to S5.5.2 the specified telltales of particular safety significance that we proposed in the NPRM. S5.5.2 will read: “The telltales for any brake system malfunction, the air bag malfunction, the side air bag malfunction, low tire pressure, passenger air bag off, high beam, turn signal and seat belt must not be shown in the same common space.” The changes adopted in this final rule continue to ensure that these telltales of particular safety significance, if activated, will always be visible to the driver, but give vehicle manufacturers increased flexibility in instrument panel design.

As explained in detail in the September 2003 NPRM, over the past several years, we have addressed several requests for interpretation asking how FMVSS No. 101's requirements for identifying controls apply to advanced design concepts that use one control to access many vehicle functions, and that display those functions on a screen that is remote from the control. Our interpretations include one dated June 8, 2000 to a manufacturer whose identity is confidential, a February 28, 2001 interpretation to Mazda, and a January 10, 2002 interpretation to Porsche.

Over the years, we have sought to interpret FMVSS No. 101 in a broad manner, to accommodate new technology. As we explained in our letter to Porsche, however, there is a limit to how much we can do by interpretation as opposed to conducting rulemaking to facilitate the use of new technology.

In the NPRM, we stated our belief that FMVSS No. 101's current requirement that the identification for controls “be placed on or adjacent to the control” has a particular potential to restrict the use of these advanced design concepts. The system that Porsche asked about included a “combination multi-function switch/rotary dial,” similar to a joystick, located on the center console between the driver's seat and the front passenger seat, and a small display screen on the dashboard. The display screen provided the identification for the various functions of the dial, which changed as different functions were selected. Thus, the dial needed to be operated in conjunction with the display screen. As we explained in our letter to Porsche, however, the dial (i.e., the control) and the related display (which provided the identification for functions of the control) could not be considered to be “adjacent,” given the distance between them.

On November 23, 2001, the agency received a petition for rulemaking from the Alliance of Automobile Manufacturers (Alliance) to eliminate the adjacency requirement from the current FMVSS No. 101, S5.2.1(a). The agency granted the petition and, in the September 23, 2003 NPRM, addressed the issues raised in the Alliance petition. The Alliance stated the view that the current language of S5.2.1(a)

The Alliance recommended particular language to be used to replace S5.2.1(a).

In the NPRM, we noted several concerns about the Alliance recommendation and proposed language that would give a limited exclusion from the adjacency requirement if the control is depicted in a display that is located in the driver's view and that clearly shows all functions available from that control. We also proposed a definition for “multi-function control” (as discussed above). Further, we sought comment on issues related to the use of multi-function controls and multi-task displays as well as comment on the proposed regulatory language itself.

The Alliance and GM commented that a requirement that the control be “depicted” in the display (proposed at S5.1.4(a)) is too design restrictive and not technically consistent with the designs of advanced control and display systems. The Alliance stated that the control itself is not depicted in the multi-task display; rather, it is the function being displayed that is depicted.

The Alliance and GM also expressed concern that the proposed language stated that “all” of the vehicle systems for which control is possible from the multi-task control must be identified in the associated multi-task display. They noted that this language appeared to extend to controls that NHTSA does not regulate, such as sound system controls.

These commenters suggested the following language for S5.1.4:

S5.1.4 The requirement of S5.1.3 does not apply to a multi-function control, provided:

(a) The control is associated with a multi-task display,

(b) The multi-task display is visible to the driver under the conditions of S5.6.1 and S5.6.2, and

(c) Each system containing any control listed in column 1 of Table 1 that can be selected from the multi-task control is identified in the associated multi-task display. Subfunctions of the available systems need not be shown on the top-most layer of the multi-task display.

In response to these comments, we believe GM/Alliance's suggested language of “associated with” is insufficient. We believe that the driver must have some visual clue that the display contains information about the functions available from the multifunction control. However, while a depiction of the multi-function control would provide the driver the necessary information, we agree that it is unnecessary to limit the identification to such a depiction. Accordingly, the final rule provides, as one of the conditions that must be met in order for a multi-function control not to be subject to the identification adjacency requirement, that the associated multi-task display must identify the multi-function control with which it is associated graphically or using words. It is up to the manufacturer to decide which identifying graphics or words to use for its design.

As to the identification of the functions operated by the multi-function control, we note that there are many potential designs that manufacturers could use. Some but not all designs may involve multiple layers. A multi-layer design might include several vehicle systems that are depicted on the top-most layer, e.g. , climate, navigation, and audio, whose specific control functions are operated by scrolling through one or more subsequent layers. For example, selection of “climate” by a vehicle operator might lead to a second layer depicting heating and cooling, the selection of which leads to a third screen depicting temperature and fan speed.

We agree with the Alliance that it would not be appropriate to require the various subsystems to be depicted on the top-most layer. There would often not be space to depict all such subsystems and, even if there were, identification of numerous subsystems might create a cluttered appearance and cause confusion. Also, recognizing the large variety of potential designs, we want to take care not to establish requirements that may be unnecessarily design-restrictive.

We believe it is appropriate to focus on requirements for the identification to be provided in two situations: (1) the top-most layer of any multi-function control that has layers, and (2) the identification of active functions of controls listed in Tables 1 and 2, i.e. , functions that are immediately affected by operation of the control to change the state of the vehicle or subsystem.

Accordingly, for the final rule, S5.1.4 states:

S5.1.4 The requirement of S5.1.3 does not apply to a multi-function control, provided the multi-function control is associated with a multi-task display that:

(a) Is visible to the driver under the conditions of S5.6.1 and S5.6.2,

(b) Identifies the multi-function control with which it is associated graphically or using words,

(c) For multi-task displays with layers, identifies on the top-most layer each system for which control is possible from the associated multi-function control, including systems not otherwise regulated by this standard. Subfunctions of the available systems need not be shown on the top-most layer of the multi-task display, and

(d) Identifies the controls of Table 1 and Table 2 with the identification specified in those tables or otherwise required by this standard, whenever those are the active functions of the multi-function control. For lower levels of multi-task displays with layers, identification is permitted but not required for systems not otherwise regulated by this standard.

As to the Alliance's concern that identification is required for controls that FMVSS No. 101 does not otherwise regulate, we note that, for the final rule, such additional identification is very limited. First, since S5.1.4 simply provides an exception to S5.1.3, it only has application for controls that include functions specifically regulated by FMVSS No. 101. Second, the rule only requires identification of additional items (not otherwise regulated by the standard) for the top-most layer of the associated multi-task display.

We believe that to the extent manufacturers include additional functions (not otherwise regulated by FMVSS No. 101) as part of the same multi-function control that includes items listed in the standard, it would be confusing if those additional functions were not identified. This could make it more difficult for users to operate the control for the items specifically addressed by FMVSS No. 101. However, under the final rule, manufacturers may identify the additional functions in any way they choose, and the requirement only applies to the top-most layer of the associated multi-task display. We do not believe this will be burdensome and, in fact, believe manufacturers would be highly likely to provide such identification in the absence of such a requirement.

We are also requiring that the controls of Table 1 and Table 2 be identified with the identification specified in those tables or otherwise required by the standard, whenever those are the active functions of the multi-function control.

We note that for a multi-task display with layers, paragraph (c) would require identification on the top-most layer of each system for which control is possible from the associated multi-function control, including systems not otherwise regulated by this standard. Paragraph (d) would then require any controls listed in Table 1 and Table 2 to be identified with the identification specified in those tables or otherwise required by this standard, whenever those are the active functions of the multi-function control.

It is possible that there could be one or more intermediate layers that are not active, e.g. , layers which are used not to immediately change the state of the vehicle or subsystem but instead take the user to a specific control that is active. We are not specifying identification requirements for such intermediate, non-active layers.

To illustrate this, we will consider the following example of a multi-function control with an associated multi-function display. The top-most layer of the display includes several systems, including climate control.

Paragraph (c) would require identification of the climate system on the top-most layer. Since heating and air conditioning system (as well as heating and/or air conditioning fan) are listed in Table 1, paragraph (d) would require the controls to be identified with the identification specified in the table or otherwise required by the standard, whenever they are the active functions of the multi-function control.

As to the second layer, identification would be required if heat/cool were active functions, e.g. , if selection of heat/cool activated and deactivated the heating or air conditioning systems. Identification would not be required if selection of heat/cool did nothing more than move the multi-task display to the next level.

As to layer 3, assuming that temperature setting and fan speed are active functions, paragraph (d) would require the controls to be identified with the identification specified in the table or otherwise required by the standard. The table specifies a symbol for heating and/or air conditioning fan control. While the table doesn't specifically mention temperature setting, paragraph S5.2.8 requires identification to be provided for each function of any heating and air conditioning system control, and for the extreme positions of any such control that regulates a function over a quantitative range. If this identification is not specified in the tables, as in this case, it must be in word or symbol form unless color coding is used. If color coding is used to identify the extreme positions of a temperature control, the hot extreme must be identified by the color red and the cold extreme by the color blue.

It is possible that there could be one or more intermediate layers that are not active, e.g. , layers which are used not to immediately change the state of the vehicle or subsystem but instead take the user to a specific control that is active. We are not specifying identification requirements for such intermediate, non-active layers.

In its comments, Western Ergonomics, Inc. (WEI) asked whether the multi-function control itself must be labeled if a screen shows all the functions. WEI expressed the view that it “seems appropriate to label the control itself in order for the operator to know which of several controls it is. This is more the case in larger trucks.” In response, NHTSA notes that in the final rule, S5.1.4 excludes all multi-function controls (including the main multi-function control) from the “on or adjacent to” requirement, as long as the control is associated with a multi-task display that meets the specified conditions. Nothing in S5.1.4 prohibits the manufacturer from labeling the main multi-function control to meet the “on or adjacent to” requirement.

American Honda, addressing the issue of multi-function controls, stated that limiting FMVSS No. 101 to only those controls and displays that are related to motor vehicle safety, and are required by other FMVSSs would minimize the issues raised by regulating multi-function controls. American Honda also expressed the view that “it remains important that critical controls, such as ignition switches, gear selection controls, headlight switches, windshield wipers, etc., must remain independent from multi-function controls and instantly accessible at all times.” Regarding American Honda's suggestion that certain controls should not be permitted as part of a multi-function control system, NHTSA notes that since it did not propose, in the NPRM, to prohibit specific controls from being part of a multi-function control system, we are not addressing this issue by regulation at this time.

Federal Express commented that a multi-task display or a multi-function control must provide the driver audible or tactile feedback when a function occurs, so as to minimize the time a driver's focus is on the display. NHTSA notes that the issue of requiring audible or tactile feedback in conjunction with multi-function controls is outside the scope of this rulemaking. However, we note that nothing in FMVSS No. 101 prevents a manufacturer from providing such audible or tactile feedback on a multi-function control system.

In the NPRM, we noted that several other safety standards include requirements that could be affected by the proposed changes to FMVSS No. 101. We stated that we would make any necessary conforming amendments to those standards as part of the final rule amending FMVSS No. 101. In this final rule, because we have decided to keep all the current identifiers for telltales, and have included no new controls, telltales or indicators in Table 1 or Table 2, no conforming amendments to other FMVSSs are necessary. Changes made to FMVSS No. 101 as a result of the April 8, 2005 (67 FR 18136) final rule on Tire Pressure Monitoring Systems (TPMS) are included in this final rule.

In response to the NPRM, AIAM recommended that the requirements in FMVSS No. 101 be limited to “safety critical” controls, telltales, and indicators. AIAM stated that a more limited scope would still facilitate international harmonization since manufacturers would not be prohibited from using the international symbols if they chose to do so. AIAM also noted that each control listed in Table 1 must be located so as to be operable by the driver and that S5.1.2 requires that telltales and indicators listed in Table 1 or Table 2 must be visible to the driver. AIAM noted that certain proposed Table 1 or Table 2 items were not intended to be controlled by the driver while the vehicle is in motion. As examples, AIAM cited seat adjustment controls (not necessarily for the driver's seat), child lock controls, and controls for heating and air conditioning systems in the rear compartment areas.

NHTSA notes that, as discussed above, we are limiting FMVSS No. 101 controls to only those that are already specified in Tables 1 or 2, or in another FMVSS. Thus, AIAM's comments are made moot.

In the NPRM, NHTSA asked for comment on whether there are any controls which, for safety reasons, should not be combined with other controls. TMA recommended that the parking brake, horn and hood opener controls should not be combined with any other controls. The Alliance stated that it did not believe that there is any need to regulate or restrict the combination of controls unless NHTSA has evidence or reason to believe that the combination of any particular controls would introduce adverse safety consequences.

As NHTSA stated earlier in Subsection F. on multi-function controls, in the NPRM, it did not propose to prohibit the combination of specific controls. NHTSA is not adopting any requirements in this area.

In the NPRM, NHTSA proposed language at S5.4.2 that stated: “Any indicator or telltale not listed in Table 1 and any identification of that indicator or telltale must not be a color that masks the driver's ability to recognize any telltale, control or indicator listed in Table 1.” TMA suggested the following alternative language: “Any indicator or telltale not listed in Table 1 and any identification of that indicator or telltale must be in a color that cannot be confused with or that masks any other indicator or telltale listed in Table 1.”

NHTSA notes that TMA's suggested language does not state that indicators or telltales must not be in a color that masks the driver's ability to recognize any telltale, control or indicator listed in Table 1 (emphasis added). Since it believes in the importance of regulating the driver's ability to recognize telltales, controls and indicators, NHTSA will adopt as final the language it proposed at S5.4.2.

In response to the NPRM, TMA agreed that the proposed eight year lead time for heavy truck manufacturers is appropriate. The Alliance stated that it is “premature” to set an effective date for vehicles to comply with an amended FMVSS No. 101. It was concerned about the proposed requirements for expanded standardized control and display identifications.

We are making the standard effective 180 days after publication, but providing a later compliance date for heavy vehicles.

For light vehicles, the amendments will not require design changes but will instead relieve restrictions. An important purpose of this final rule is to update the standard so that it appropriately addresses advanced multi-function controls. Since NHTSA has ensured that the telltales, indicators and controls specified in Tables 1 and 2 are all presently specified in FMVSS No. 101 or are specified in other FMVSSs, amendments to Tables 1 and 2 should have no substantive effects for manufacturers of vehicles under 4,536 kg GVWR. Moreover, the other changes made to the standard will not require changes to current light vehicles.

Design changes will be required for vehicles with GVWRs of 4,536 kg. (10,000 pounds) or greater, since these vehicles have not previously been subject to FMVSS No. 101's requirements for identification and illumination of displays. In this final rule, we recognize that heavy vehicles have a longer redesign cycle than do passenger vehicles. Thus, for vehicles of 4,536 kg GVWR or greater, the compliance date for the new requirements for telltales and indicators is approximately eight years after publication.

Early voluntary compliance with the provisions of this final rule is permitted immediately.

In this final rule, NHTSA amends FMVSS No. 101 as described in the sections above. The new rule extends the standard's telltale and indicator requirements to vehicle of Gross Vehicle Weight Rating (GVWR) 4,536 kilograms (10,000 pounds) and over, updates the standard's requirements for multi-function controls and multi-task displays to make the requirements appropriate for advanced systems, and reorganizes the standard to make it easier to read. Table 1 and Table 2 continue to include only those symbols and words previously specified in the controls and displays standard or in another Federal motor vehicle safety standard. However, both Tables 1 and 2 have been reorganized to make the symbols and words easier to find.

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. 101. 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 expand Tables 1 and 2 to make FMVSS No. 101 include the use of a graphic symbol set established by the International Standards Organization (ISO) specifically for controls and displays in motor vehicles, ISO 2575:2000, to make FMVSS No. 101 applicable to all “vehicles” of 4,536 kilograms (10,000 pounds) and greater, and to except multi-function controls and multi-task displays from the “on or adjacent to” requirement for identifying controls. Some commenters questioned the safety need to include all the ISO 2575:2000 symbols in FMVSS No. 101, and whether FMVSS No. 101 should be made applicable to vehicles of 4,536 kg GVWR and greater. In this final rule, NHTSA stated that after considering the comments, we have decided to retain the content of Tables 1 and 2 as specified in the current FMVSS No. 101, and to specify no others. However, we have decided to adopt the format of the tables proposed in the NPRM, to make identifiers easier to find in the tables. Therefore, in this final rule, for controls, telltales, and indicators, Table 1 specifies identifiers, color requirements and whether illumination is required for a control, telltale, or indicator, and specifies which have illumination or color requirements. Table 2 specifies identifiers for controls, telltales, and indicators other than those listed in Table 1. No color or illumination requirements are specified in Table 2.

We have also decided to extend the standard's telltale and indicator requirements to vehicles of 4,536 kg GVWRs and greater. We have also adopted a limited exclusion for multi-function controls and multi-task displays from FMVSS No. 101's “on or adjacent to” identification requirements for controls.

As indicated, we have thoroughly reviewed the public comments and adopted a final rule in light of comments. In the instances where we did not adopt a comment, we explain why we did not adopt the comment. We believe that this final rule amending FMVSS No. 101 meets the need for safety.

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 or 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).

For the following reasons, NHTSA concludes that this final rule will not have any quantifiable cost effect on motor vehicle manufacturers. We believe that for vehicles of less than 4,536 kg GVWR, all vehicle manufacturers already identify each control, telltale or indicator provided in vehicles they manufacture, as specified in this final rule or in another Federal motor vehicle safety standard. For manufacturers of vehicles of 4,536 kg GVWR and over, in this final rule, we are providing approximately eight years of leadtime, which is enough time for manufacturers to make necessary vehicle changes that coincide with continuous design changes in the affected motor vehicles for future model years.

We believe that as a result of this final rule, vehicle manufacturers would include minimal costs to make the identifications meet FMVSS No. 101. Manufacturers of motor vehicles under 4,536 kg GVWR must already meet the requirements specified in the two tables in this final rule. This final rule removes a regulatory restriction (for multi-function controls) requiring identification “on or adjacent to” the controls. This final rule specifies the symbols that must be used to identify each control, telltale or indicator in a motor vehicle. This requirement applies only if that control, telltale or indicator were listed in one of the two tables in this final rule, or in another Federal motor vehicle safety standard.

Because the economic effects of this final rule are so minimal, no further regulatory evaluation is necessary.

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). The Small Business Administration's regulations at 13 CFR Part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR § 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

The Administrator has considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and certifies that this final rule will not have a significant economic impact on a substantial number of small entities. The statement of the factual basis for the certification is that for vehicles of less than 4,536 kg GVWR, all vehicle manufacturers (including small manufacturers) already identify each control, telltale or indicator provided in vehicles they manufacture, as specified in this final rule or in another Federal motor vehicle safety standard. For small manufacturers of vehicles of 4,536 kg GVWR and over, in this final rule, we are providing approximately eight years of leadtime, which is enough time for manufacturers to make necessary vehicle changes that coincide with continuous design changes in the affected motor vehicles for future model years. For manufacturers of motor vehicles with multi-function controls, we are relieving a regulatory restriction.

For these reasons, and for the reasons described in our discussion on Executive Order 12866 and DOT Regulatory Policies and Procedures, NHTSA concludes that this final rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.

Executive Order 13132 requires NHTSA 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.” The Executive Order defines “policies that have federalism implications” 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, NHTSA 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 the agency consults with State and local officials early in the process of developing the regulation. NHTSA also may not issue a regulation with Federalism implications and that preempts State law unless the agency consults with State and local officials early in the process of developing the regulation.

NHTSA has analyzed this rulemaking action in accordance with the principles and criteria set forth in Executive Order 13132. The agency has determined that this rule will not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. This rule will not have any substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. 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.

Pursuant to Executive Order 12988 “Civil Justice Reform,” we have considered whether this final rule would have any retroactive effect. NHTSA concludes that this final rule will 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.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid Office of Management and Budget (OMB) control number. This final rule does not require any collections of information, or recordkeeping or retention requirements as defined by the OMB in 5 CFR Part 1320.

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

After conducting a search of available sources, we have determined that there is an applicable voluntary consensus standard. That standard is the International Standards Organization's (ISO) Standard 2575:2000. We are using some of the symbols from that Standard in Table 1 and Table 2 of 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 rule for which a written statement is needed, section 205 of the UMRA generally requires NHTSA 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 NHTSA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.

This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of more than $100 million annually. Accordingly, 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:

We have solicited comments on the Plain Language implications of the NPRM in the Federal Register document of September 23, 2003 (68 FR 55217) on p. 55225. We received no comments on the Plain Language issue.

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.

On June 17, 1998, the National Highway Traffic Safety Administration (NHTSA) published a final rule establishing a new Federal Motor Vehicle Safety Standard (FMVSS) No. 500, “Low-speed vehicles,” and added a definition of “low-speed vehicle” (LSV) to 49 CFR 571.3 (63 FR 33194). This new FMVSS and vehicle class definition responded to the growing public interest in using golf cars and other similarly sized small vehicles to make short trips for shopping, social, and recreational purposes primarily within retirement or other planned, self-contained communities. These vehicles, many of which are electric-powered, offer comparatively low-cost, energy-efficient, low-emission, quiet transportation. 1 The current definition of LSV is “a 4-wheeled motor vehicle, other than a truck, whose speed attainable in 1.6km (1 mile) is more than 32 kilometers per hour (20 miles per hour) and not more than 40 kilometers per hour (25 miles per hour) on a paved level surface.”

When we first proposed and established FMVSS No. 500, we stated that we envisioned the LSV as a small, lightweight vehicle that could not meet FMVSSs appropriate for larger and heavier vehicles. 2 As originally proposed in January 1997, trucks were not excluded from the definition of LSV. We proposed the “creation of a new class of vehicle * * * with a definitional criterion of speed alone.” However, low-speed vehicles with “work performing features” (such as a street sweeper) would have been excluded under the 1997 proposed definition. After considering the comments, we limited LSVs to vehicles other than trucks. Not excluding trucks from the LSV definition would have had the unintended result of rendering some vehicles that already met FMVSSs subject to neither those standards nor even the minimum limitations applicable to LSVs.

We have encouraged states to be very careful when contemplating the use of LSVs on public roads. A LSV does not have the occupant protection capability of other four-wheeled motor vehicles. Its lightness makes its occupants vulnerable in any collision with a non-LSV vehicle. The force involved in such a collision increases proportional to the square of the velocity of travel. For example, the result of a vehicle collision at 35 miles per hour (mph) is twice as severe as the same collision at 25 mph.

We continue to anticipate that LSV use on roads outside confined, controlled areas will be limited by the maximum speed capability of LSVs. We expect that occupants will not want to travel at less than 25 mph in mixed-vehicle traffic for other than very short trips, regardless of the extent to which states permit LSV use.

Since the publication of the final rule in 1998, we have received two petitions regarding the exclusion of trucks from the definition of LSV. The first was a petition for reconsideration of the final rule by Solectria (seconded by Electric Transportation Coalition) asking us to reconsider the exclusion of trucks from the definition of LSV because Solectria manufactures a micro electric pickup truck. Solectria said its truck was “suitable” for many uses off the public roads, such as airports, college properties, and parks. Solectria asked that we amend the definition of LSV to exclude only trucks with a curb weight greater than 2,200 pounds.

In our response to Solectria's petition for reconsideration (65 FR 53219; Sept. 1, 2000), we reiterated the discussion from the preamble to the final rule that we believed excluding trucks from Standard 500 “ensures that such trucks must continue to meet the Federal standards that have always applied to trucks with a maximum speed of more than 20 miles per hour” and that we believed the decision to be “consistent with the rationale of this rulemaking, which is to eliminate a regulatory conflict involving passenger-carrying vehicles.” We noted that FMVSSs applicable to trucks with a maximum speed between 20 and 25 mph had not inhibited the introduction of such trucks in the past. However, we also stated,

Subsequently, in January 2002, the agency received a petition regarding the LSV definition from Global Electric Motorcars (GEM), a DaimlerChrysler company. GEM asked that NHTSA change the definition of LSV, “to include ‘trucks’ or vehicles designed primarily for the transportation of property or special purpose equipment, so long as they meet the existing vehicle speed limitations of the definition.” GEM noted that the NPRM stated “LSVs would include all motor vehicles, other than motorcycles * * * whose speed * * * does not exceed 25 mph,” and that the agency had recognized, “that there is no reasonable justification for subjecting low-speed vehicles like golf carts * * * to the full range of safety standards that apply to heavier, faster vehicles.”

As a result of the petitions received from GEM and Solectria, the agency decided to reconsider the LSV definition. In a notice of proposed rulemaking (NPRM) published on December 8, 2003 (68 FR 68319), we granted the petitions by GEM and Solectria, and tentatively agreed with the petitioners that the current exclusion of trucks from the LSV definition is too broad and does not fully reflect current interpretations of that definition. 3 In the NPRM, we proposed to drop the exclusion of trucks from the definition and otherwise revise our definition of a LSV.

In the NPRM, we proposed to revise the definition of LSV by (1) eliminating the “other than truck” text from the definition, (2) limiting a LSV's GVWR to less than 1,134 kilograms (2,500 pounds), and (3) requiring that a LSV have a rated cargo load of at least 36 kilograms (80 pounds).

The current definition of LSV is:

49 CFR 571.3(b). The agency proposed the following definition:

The proposed definition reflected our tentative determination that there is no reasonable basis to differentiate between passenger and cargo-carrying vehicles in the definition of LSVs. At the same time, the proposed definition would be more complete and would better communicate the concept that NHTSA has always expressed: LSVs are a class of vehicles for which the FMVSS for larger vehicles are inappropriate because of the small size of the vehicles in this class. 4

In tentatively deciding to remove the exclusion of trucks from the definition of LSV, we concluded that it would be necessary to replace that limitation with an alternative limitation of what could be considered a LSV. We proposed adding a maximum GVWR limitation to the LSV definition. In the NPRM, we stated that using GVWR would be an appropriate and objective way to define LSV for several reasons. First, it would prevent attempts to circumvent the FMVSSs for cars, trucks, and multipurpose passenger vehicles by seeking to apply the LSV classification to vehicle types that are able to meet the standards. Second, GVWR would provide a means to distinguish between vehicles that the agency envisions as LSVs and traditional small vehicles that are currently certified to meet all applicable FMVSSs ( e.g. , Toyota Echo, Ford Focus, and Chevrolet Tracker). Third, it would enable the agency to continue to exclude from the LSV definition all heavier, slow-moving trucks ( e.g. , street cleaners) that are able to meet all FMVSSs applicable to trucks. Under the LSV revisions as proposed in the NPRM, these heavier, slow-moving trucks would still be required to meet all of the FMVSSs applicable to trucks.

In proposing to add a GVWR limitation to the definition of LSV, we needed to determine the appropriate maximum GVWR for LSV vehicles. We proposed a GVWR of “less than 2,500 pounds.” We stated that this proposed “less than 2,500 pound” GVWR limitation for LSVs was the result of our identification of vehicles constituting a class of motor vehicles so small that they are generally unable to meet all of the FMVSSs required for passenger cars, multipurpose vehicles, and trucks. The NPRM provided a detailed comparison of vehicles less than 2,500 pounds ( e.g. , GEM E825 Short Bed Utility and Ford Th!nk Neighbor) to vehicles 2,500 pounds or greater, which are capable of meeting all of the applicable FMVSSs ( e.g. , Toyota Echo, Ford Focus, and Chevrolet Tracker). The “less than 2,500 pound” GVWR limitation was also proposed based on existing LSVs, GVWR submitted by companies registering with NHTSA as intending to manufacture LSVs, and the Society of Automotive Engineers Surface Vehicle Standard J-2358.

In the NPRM, we noted that the “less than 2,500 pound” GVWR limitation would include some vehicles that are currently certified to the FMVSSs, such as the Honda Insight. Such a vehicle would, of course, not be considered a LSV unless it also met the other limitations specified in the LSV definition ( e.g. , a maximum attainable speed of 25 mph). We proposed the “less than 2,500 pound” GVWR limitation to accommodate electric LSVs, which are heavier than internal combustion engine models. The increased weight of electric LSVs can be attributed to their heavier electric propulsion systems and their need for battery storage. The agency did not propose a LSV definition with maximum GVWR greater than 2,500 pounds, in part, because there are currently not any performance requirements for service brakes and tires that are appropriate for these vehicles.

In addition, we proposed an additional limitation of a minimum rated cargo load (RCL) of 80 pounds. The proposed RCL minimum was intended to ensure some load carrying capacity in addition to the regulatory requirement of 150 pounds per designated seating position (as defined in 49 CFR 571.3).

We proposed the LSV definition changes because we believed they would make the definition more complete, clarify the definition as to the type of vehicle NHTSA intended to exclude from the FMVSSs for cars, trucks and multipurpose passenger vehicles under the LSV definition, and allow manufacturers of LSVs more flexibility in the design of their products without sacrificing the safety of the vehicles' users. Further, the crash avoidance and crash protection requirements for a LSV are appropriate for that vehicle's size and anticipated usage, regardless of whether the vehicle is designed to transport passengers or cargo.

We received sixteen comments on the NPRM. 5 Comments were received from LSV manufacturers, LSV distributors, an industry organization representing golf cart manufactures, public interest groups, individual members of the public, and a member of Congress.

A few commenters expressed concern about expanding the definition by removing the truck exclusion. However, a majority of commenters supported the removal of this exclusion, while expressing concern with and opposition to the proposed GVWR and RCL limits. Comments regarding the proposed limits generally found the limits to be too restrictive.

Today's document establishes the definition of LSV as proposed in the December 2003 NPRM, except that we are not specifying a minimum RCL. The definition of LSV is revised as follows:

This definition eliminates the exclusion of trucks from the LSV definition. A vehicle equipped with a cargo bed or other form of cargo carrying capacity may now be classified as a LSV, so long as the vehicle complies with the other provisions of the definition.

The definition established in today's document better expresses our concept of “LSV.” As previously expressed, “LSV” is intended to comprise a class of vehicles for which the FMVSSs for cars, trucks, and multi-purpose vehicles are inappropriate because of the small size of these vehicles. Today's definition defines the limits of that size and permits the manufacture of LSVs designed for a more utilitarian function through the incorporation of greater cargo carrying capacity. LSVs with greater cargo carrying capacity offer a flexible and economical alternative to trucks in the appropriate environments, such as gated and retirement communities. The application of the full range of FMVSSs to which cars, trucks, and multipurpose passenger vehicles are subject, is equally inappropriate to these small, lightweight vehicles, whether they are designed to carry primarily passengers or property.

Two commenters, NGCMA and Advocates, opposed removing the truck exclusion from the definition of LSV. NGCMA asserted that NHTSA failed to consider numerous industry standards concerning LSV performance and safety (specifically standards SAE J-2358, ISO 391-6:2003, and ASME 56.8) and that the agency should consider all of the ramifications inherent in industrial truck function and performance ( e.g. , existing truck FMVSSs, fuel and battery acid containment, brake performance criteria, reverse warning signal horns). NGCMA also argued that including trucks in the LSV classification will have the unintended anti-competitive effect of replacing currently available off-road light utility vehicles (with an operating speed of less than 20 mph) with LSV trucks, which may offer tax advantages. Finally, NGCMA argued that one vehicle, the Frazer-Nash 4XLSV NEV would be excluded from the definition of LSV because it has a GVWR of 3,304 lbs. 6

We have carefully considered NGCMA's comments. We note that we have considered industry standards related to LSVs and specifically mentioned SAE J-2358 in the NPRM. Further, because of the limited speed and intended environment of operation, we have determined that the full range of standards applicable to trucks is not applicable to “truck-like” LSVs, i.e. , those designed with greater cargo carrying capacity.

Removal of the truck exclusion from the definition of LSV will permit vehicles with a maximum speed between 20 and 25 mph that are manufactured primarily to transport property to be manufactured as motor vehicles. These vehicles will also be manufactured primarily for use on public roads. The vehicles discussed by NGCMA that have maximum speed capabilities below 20 mph are off-road vehicles, i.e. , vehicles not manufactured for use on public roads. The off-road vehicles and the “truck-like” LSVs are manufactured for two different operating environments. Therefore, we do not anticipate that these vehicles will be in direct competition in the marketplace. We have also considered the economic impacts as required under the Regulatory Flexibility Act, discussed in greater detail below.

We also note that the Frazer-Nash 4XLSV mentioned in NGCMA's comments is equipped with a cargo bed. While the vehicle would not be considered a LSV under the new definition because it exceeds the “less than 2,500 pound” GVWR limitation, it would also not have been considered an LSV under the previous definition because of the cargo bed.

Advocates generally opposed removing the truck exception. Advocates stated that that this rulemaking will expose many people to unnecessary risks of injuries and death because their use of LSVs that fail to conform to basic Federal safety standards for occupant protection. Advocates argued that this rule will expand the types and variety of LSVs thereby guaranteeing that even more LSVs will operate on public roads without benefit of major advances in federally regulated safety equipment and occupant crashworthiness. Advocates also argued that LSV trucks operating with speeds as high as 25 mph will result in more severe crashes, all other things being equal, because of the increased mass of these larger LSVs when they collide, especially with roadside fixed objects.

Advocates did not provide an estimate of the increase in LSVs operated on public roads (and occupants exposed) that will result from this final rule. Although we are including vehicles with greater cargo carrying capacity in the definition of LSV, we are also limiting the definition through establishing a maximum GVWR. The limitations on GVWR limitation in combination with the existing maximum speed limit of 25 mph will generally act to restrict the use of these vehicles to the appropriate environments. Given these limitations, we do not expect that operators of these vehicles will drive them in mixed-vehicle traffic for other than very short trips.

Advocates also argued that the rule would result in more severe crashes because of the 25 mph speed limitation and increased LSV mass. We did not propose to change the speed limitation in this rulemaking. As to mass, the GVWR limitation will prevent larger, heavier trucks from being classified as LSVs. Instead, truck LSVs will be similar to current LSVs.

Limiting LSVs to a GVWR of “less than 2,500 pounds” is consistent with the safety and practicability concerns that originally gave rise to the LSV class. When we created this vehicle class, we did so in response to the growing use of LSVs on roads in planned environments, such as retirement and gated communities. To strike an appropriate balance between competing considerations such as safety, practicability and mobility, we sought then and continue to seek now to define the LSV class narrowly in recognition of the LSV's low operating speed and its limited use on roads in planned communities.

By removing the truck exclusion we recognize that the LSV requirements are applicable to some vehicles designed for more work-related operation. Manufacturers and the public are provided the advantages of LSVs that may be designed primarily to carry cargo. By limiting the GVWR, vehicles for which the LSV requirements are not appropriate are excluded from the LSV definition, i.e., vehicles designed for use outside of planned communities or that could be designed to meet the FMVSS requirements for cars, trucks, and multi-purpose vehicles.

The GVWR limit prevents attempts to circumvent FMVSSs for cars, trucks, and multi-purpose passenger vehicles by applying the LSV classification to vehicle types that are able to meet the standards. Defining a LSV as having a maximum GVWR of less than 2,500 pounds also provides an objective means for delineating between the vehicles for which the LSV requirements are appropriate and those vehicles that can be designed to meet the full set of FMVSSs. This approach will also ensure that heavier, slow moving trucks ( i.e., street sweepers) continue to be excluded from the LSV definition.

A variety of commenters, i.e., DaimlerChrysler, ZAP, ZAP Latin America, Voltage Vehicles, C.C. Chan, Donahue, Ms. Lauren Brooks, EDTA, Harley Holt, Mr. Alex Campbell, CAMEV, and Representative Lynn Woolsey, expressed concern with or objected to setting the GVWR limit at 2,500 pounds. Concern was raised specifically with regard to the limits impact on the utility of electrically powered LSVs, the impact on the LSV industry, and on LSVs designed to accommodate individuals with disabilities.

ZAP Latin America, ZAP, C.C. Chan, and EDTA commented that limiting the GVWR to less than 2,500 would limit the range of an electrically powered LSV (arguing that the GVWR limit would result in reducing the number or size of the batteries in these vehicles) and limit the ability of manufacturers to equip these vehicles with amenities. ZAP and CAMEV requested that NHTSA consider a higher GVWR limit. ZAP and C.C. Chan argued that a higher GVWR limitation would allow for market demands for increased range (resulting in heavier vehicles due to battery weight) and solid doors, windows, heating and air conditioning, and advanced hybrid systems.

CAMEV argued that the “less than 2,500 pound” GVWR limitation, as proposed, would cut the driving range of an electric powered vehicle from 35 miles to 22 miles, as a result of having to reduce the weight for battery capacity from 800 pounds to 625 pounds. This decreased range, it argued, would have the effect of limiting applications of LSVs.

Donahue, Mr. Alex Campbell, Representative Lynn Woolsey, C.C. Chan, and Harley Holt argued that the “less than 2,500 pound” GVWR provision of the LSV definition would significantly impact or materially harm the LSV industry. Concern was raised regarding the impact of the proposed rule existing companies, particularly, ZAP, Voltage Vehicles of Windsor California, and RAP of Windsor California, as well as on the most widely accepted existing LSVs.

As stated above, we are adopting the 2,500 pound GVWR limit in the definition of LSV to provide the appropriate balance between the intended function of these vehicles and safety. Again, the LSV class was established to recognize vehicles manufactured for operation in limited, and typically closed environments. The LSV class is not intended to include vehicles manufactured for operation in mixed traffic. A maximum GVWR of less than 2,500 pounds will enable LSV manufacturers to design a LSV with sufficient range and amenities, suitable for operating in these communities.

Given that vehicles fully compliant with FMVSS exist under 2,500 lbs and that the LSV class was created for vehicles that were too small to meet the FMVSS, there is no reason for vehicles over 2,500 lbs not be fully FMVSS compliant, and thus a great deal safer than a 2,500 lb GVWR LSV.

As noted in the 1998 final rule, the operation of LSVs in an environment with heavier, faster moving vehicles raises obvious safety concerns. Because LSVs are much lighter than conventional vehicles and are not subject to the same Federal motor vehicle safety standards, they are less crashworthy than conventional vehicles. Thus, LSV drivers, especially those unused to the limited acceleration capabilities of LSVs, and passengers will be exposed to a greater risk of injury or death when operating an LSV on roadways with a posted speed limit of 35 mph, or when attempting to cross a roadway with a posted speed limit greater than 35 mph.

We believe that, as LSVs become equipped with additional amenities, such as air conditioning, solid doors, and batteries for extended range, they lose the basic characteristics of a special vehicle designed for transportation within a planned, limited environment. Instead, these vehicles take-on the profile of a small, traditional passenger car vehicle, and in some cases, may be marketed as a small passenger car or as a substitute for a small passenger car. Even with a 25 mph speed limitation, we are concerned that LSVs that have characteristics and attributes of traditional passenger cars will be more likely to be used outside of planned communities and instead, more regularly mix with traffic. We currently require small vehicles, such as the Honda Insight, to be fully compliant with all FMVSSs. We do not believe that it is in the interests of safety to make an exception from our normal FMVSS standards for such vehicles. Moreover, there is no reason why vehicle with a GVWR greater than 2,500 pounds cannot be designed to comply with all the safety standards applicable to traditional passenger cars.

While the EDTA agreed that the GVWR provided an appropriate method for restricting the size of LSVs, it commented that the 2,500 pound limit is overly restrictive and would reduce the flexibility to develop new products in the future with different propulsion configurations or additional features. EDTA stated that the proposed GVWR does not take into consideration the increased weight associated with additional features necessary to comply with revised safety requirements or performance standards.

DaimlerChrysler noted that its vehicles are powered by an electric propulsion system, which adds 300 pounds to a comparably equipped internal combustion engine LSV. As such, DaimlerChrysler recommended a two-tiered GVWR maximum for the definition of a LSV: a 2,500-pound GVWR limitation for internal combustion LSVs, and a 2,800-pound limitation GVWR for electric powered LSVs. DaimlerChrysler argued that this would allow it to present customers with a choice between internal combustion and electric propulsion systems for vehicles carrying the same payload. ZAP Latin America was also concerned that the GVWR limitation would diminish its ability to compete with internal combustion automobiles (since internal combustion automobiles are likely to have a greater range than electric LSVs).

The LSV definition does not specify a propulsion system. A LSV may be powered by an electrical motor, an internal combustion (IC) engine, or some other type of propulsion system. Each propulsion type has its own advantages. The advantage of the lighter weight of IC propulsion is an advantage that already exists. However, DaimlerChrysler noted that the majority of LSVs are electric. Mr. Walter Harsch commented that it is not the “norm” for “working” vehicles to be electric, but he anticipates the trend to move toward electric vehicles.

The fact that electric LSVs are successful in the market indicates that any advantage of the IC vehicle due to greater load capacity under our GVWR restriction will be overcome by other attractions of the electric vehicle to consumers. Therefore, it does not appear that this final rule creates a new disadvantage for electric vehicles. While IC vehicles are able to carry more weight, since they do not need batteries, this advantage seems to be countered by consumers' preference for electric-powered vehicles.

Further, we considered the amount of weight necessary for battery reserve in electric vehicles when we proposed our “less than 2,500 pound” GVWR limitation. The intent of the LSV definition is to recognize a class of vehicles for which the full range of safety standards applicable to cars, trucks, and multipurpose passenger vehicles is not appropriate because of the LSVs' small size and limited use. We found that the lightest fully FMVSS compliant vehicle is about 2100 pounds GVWR. By setting the LSV maximum GVWR at 2500 pounds we have allowed 400 lbs for batteries for electric propulsion.

ZAP Latin America, Ms. Lauren Brooks, and C.C. Chan argued that a safety-based approach should include heavier LSVs in the definition because heavier LSVs are safer or because LSVs are made heavier for safety purposes. For example, ZAP Latin America commented that it makes a heavier LSV for safety purposes. Lauren Brooks and C.C. Chan stated that lighter vehicles have a much higher risk of a fatal crash (citing DOT HS 662 Vehicle Weight, Fatality and Crash Compatibility of Model Year 1991-99 Passenger Cars and Light Trucks). C.C. Chan commented that passengers would be safer behind a solid door rather than being in open air, and that the current weight would limit the ability for these vehicles to have solid doors and windows, making them less safe.

In a crash with a traditional, heavier vehicle, a LSV would be at a disadvantage. This is why we believe that the use of LSVs should be restricted to planned communities. The commenters cited our study on Vehicle Weight, Fatality and Crash Compatibility of Model Year 1991-99 Passenger Cars and Light Trucks. This study involved vehicles that fully comply with all of our FMVSSs for passenger cars and trucks. The study did not involve LSVs.

As we stated above, heavier vehicles ( i.e. , vehicles over 2,500 pounds GVWR) that take-on the profile of a small car, and contain solid doors, air conditioning systems, and batteries for extended range, are more likely to be used on roads outside of neighborhoods and planned communities. We do not believe that it is appropriate to encourage such use. These heavier vehicles can instead be designed to meet the full set of FMVSSs. Therefore, we believe that the “less than 2,500 pound” GVWR restriction helps to ensure that the vehicles will be limited in the geographic scope of their use, as NHTSA originally intended, thereby reducing the risk to occupants from mixing with other vehicles.

We believe that “less than 2,500 pounds” GVWR is adequate for a LSV that operates in planned communities. We also believe that increasing the maximum GVWR for a LSV would be inconsistent with the interests of safety, as discussed above. Finally, we believe that as a vehicle becomes heavier and increasingly resembles a small vehicle, by having features such as doors, it is more likely that the vehicle will be mixed with heavier vehicles, and can and should meet the full range of FMVSSs.

Voltage Vehicles and Donahue both commented that limiting the weight of the LSV would limit the ability of manufacturers to offer LSVs to accommodate people with disabilities. Voltage Vehicles stated that it has been working to develop a wheelchair accessible version of the ZAP World Car. Voltage Vehicles stated that its current modifications would add as much as 200 to 350 pounds to the GVWR of the vehicle, which already has a GVWR of approximately 3,000 pounds.

We note that the vehicles described by Voltage Vehicles would exceed the GVWR limit established in this final rule prior to the modifications for accommodating people with disabilities. We also note that existing LSV can be modified to accommodate individuals with disabilities while maintaining a GVWR below 2,500 pounds. Braun Corporation modifies the GEM LSV with a turning seat and a hoist for a wheelchair or scooter. The GEM eL, which is a LSV that is accessible to occupants with mobility impairments, has a GVWR of 2,300 pounds. It could easily accommodate a heavy power wheelchair and still have capacity for the occupant, another passenger, and special equipment.

The agency also received a comment from Mr. Walter Harsch requesting that LSVs be limited according to “curb weight” as opposed to GVWR. However, curb weight describes only the weight of the vehicle and not its capacity. GVWR is a description of the maximum possible weight of the fully loaded vehicle. GVWR is more pertinent to safety.

The agency has determined that a GVWR limit of 2,500 pounds in conjunction with the 25 mph speed limitation, provides a more appropriate definition for a LSV. We believe that GVWR is necessary to limit this class of vehicle to vehicles that are used in planned communities and cannot be designed to meet the full set of FMVSSs. Also, we stated in the original final rule and the NPRM to this rulemaking, we did not intend for heavier, slow-moving vehicles ( e.g. , street sweepers), or vehicles that can be designed to meet the full set of FMVSSs, to be included in the LSV class.

The agency is not adopting the minimum RCL requirement as proposed. The proposed minimum RCL was intended to address safety concerns regarding the overloading of vehicles. In its comments DaimlerChrysler agreed with our proposal. Although the proposed RCL limit was a minimum, ZAP argued that LSVs are used for many purposes, some of which are for cargo loads that may exceed 80 pounds. Harley Holt commented that the selection of an 80-pound minimum rated cargo load simply because it is the estimated weight of two golf bags is inappropriate when applied to LSVs that would be sold and used to transport property. Harley Holt suggested that there be no minimum value specified for rated cargo load.

We have carefully considered the comments on our proposed 80-pound RCL limitation, and have decided not to include the limitation in the final rule. We note that it is important for safety, for all classes of vehicles, that vehicles not be driven in an overloaded condition. However, we believe that the “less than 2,500 pound” GVWR limitation in addition to the other limiting attributes of the definition negate the need to specify a RCL to accomplish this goal.

In the NPRM, we requested comments on several additional issues. In response to our inquiry of whether GVWR is the most appropriate method for restricting the size of LSVs, DaimlerChrysler commented that it agreed with the method but also suggested a minimum height limitation to aid the conspicuity of LSV vehicles. We have reviewed DaimlerChrysler's comments and note that we have recently addressed the LSV conspicuity issue. For further details, please see our original final rule (63 FR 33194, June 17, 1998) and our recent termination of rulemaking (70 FR 7222, Feb. 11, 2005) where we determined that there is an absence of data showing a conspicuity-related safety problem with current LSV designs.

ZAP and C.C. Chan commented that NHTSA should consider broadening the LSV definition to include 3-wheeled vehicles. ZAP noted that many low speed vehicles in Europe have 3 wheels. However, the 4-wheel limitation distinguishes a LSV from a “motor cycle” or a “motor-driven cycle” as defined in 49 CFR § 571.3. Motorcycles and motor-driven cycles are separately regulated. Our proposal to change the LSV definition does not change the relationship in how we regulate LSVs and motorcycles or motor-driven cycles. Any such change is beyond the scope of this rulemaking and would require us to do further analysis and provide for public comment on such a change.

Several commenters, i.e. , Mr. Alex Campbell, Representative Lynn Woolsey, and EDTA, commented that the government should be working to reduce the restrictions for zero-emission forms of transportation, and promote the use of technologies that provide environmental benefits.

As we stated in the June 1998 final rule, we believe that the creation of the LSV class would help, not hurt, communities reach environmental goals. We believe that the promulgation of FMVSS No. 500 was a pragmatic, flexible and necessary approach to regulating the safety of LSVs. The adoption of the GVWR limitation is necessary to balance the utility of the LSV with safety concerns. Eliminating the truck exclusion further increases the flexibility of the LSV class and may provide additional environmental benefits by permitting the manufacture of a vehicle that could be operated in lieu of a truck in the appropriate operating environments.

Executive Order 12866 and DOT Regulatory Policies and Procedures 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.

This rulemaking document was not reviewed under Executive Order 12866, “Regulatory Planning and Review.” The agency is aware of only one LSV (the imported ZAP Worldcar) currently produced that will no longer be classified as a LSV under the final rule. This impact will not result in an annual effect on the economy of $100 million or more.

As discussed below in Regulatory Flexibility Act analysis, the manufacturer of this vehicle has two options: (1) To redesign the vehicle to comply with the full set of FMVSSs, or (2) to reduce the weight and GVWR of the vehicle so that it meets LSV class limitations.

This final rule will permit current LSV manufacturers to produce LSVs for more work oriented functions. In the petitions for rulemaking received by the agency and the comments on this rulemaking, manufacturers stated that the definition adopted today will allow them to expand production to meet a consumer need.

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). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

I certify that the proposed amendment will not have a significant economic impact on a substantial number of small entities.

The following is the agency's statement providing the factual basis for the certification (5 U.S.C. 605(b)). The final rule directly affects motor vehicle manufacturers, specifically, manufacturers of LSVs. North American Industry Classification System Codes (NAISC) code number 336111, Automobile Manufacturing, prescribes a small business size standard of 1,000 or fewer employees. NAISC code number 336211, Motor Vehicle Body Manufacturing, prescribes a small business size standard of 1,000 or fewer employees.

The establishment of the new category of motor vehicles, low-speed vehicles, under FMVSS No. 500, in 1998, provided small business with the opportunity to expand into a new market. This final rule will further permit the manufacture of LSVs to meet additional needs, but it will also limit the market for LSVs to those under 2,500 pounds GVWR. The previous definition of LSV did not limit the GVWR of motor vehicles that could be defined as a LSV.

In 2003, over 30 manufacturers had registered with NHTSA as intending to manufacture LSVs. One-third of these manufacturers listed the intended GVWR range as including vehicles over 2,500 pounds. However, to our knowledge at this time, there is only one U.S. manufacturer (California Manufacture of Electric Vehicles (CAMEV)) with actual plans to produce a LSV with a GVWR over 2,500 pounds. CAMEV has 1,000 or fewer employees.

CAMEV has not yet manufactured a vehicle and is in the development stage. CAMEV stated that the GVWR limit of “less than 2,500 pounds” is not the appropriate method of restricting the size of LSVs and that the proposed GVWR would not provide enough weight allowance for the electric propulsion system, and would limit the vehicle's applications. CAMEV stated that it is designing an electric vehicle “model Q” that has a GVWR of approximately 3,200 pounds. CAMEV recommended a 3,200-pound GVWR limitation.

As explained above, the agency has determined that “less than 2,500 pounds” is an appropriate limit for LSVs and has taken into consideration the weight of electric propulsion systems. If CAMEV wants to keep the current vehicle design of over 2,500 pounds GVWR, then it must make the vehicle fully compliant with all applicable FMVSSs for a vehicle over 2,500 pounds GVWR.

The cost implications of these choices are difficult to estimate. Reducing the GVWR of the vehicle may be a difficult task once a vehicle is in production. Manufacturers seeking to reduce weight of LSVs can utilize mechanical innovations, advanced material technologies, and design concepts to achieve this goal while maintaining vehicle performance. Unconventional design features and aerodynamics, along with lightweight materials reduce weight throughout the vehicle and lower drag coefficient, thus requiring less power. The development of higher efficiency propulsion systems and advanced energy storage, underway through government and industry initiatives, will accelerate the production of LSVs meeting FMVSS requirements, lower cost, and provide options in the design of the LSV package.

However, weight reduction of a vehicle still in development could be accomplished with the above listed technologies without a significant economic impact to the manufacturer. Incorporating the above listed technologies would maintain the functional design of the vehicle and possibly provide benefits in fuel economy or battery life.

Designing the vehicle to comply with applicable FMVSSs is another alternative. NHTSA estimates that the FMVSSs added an average of $858 (in 2003 dollars) and 125 pounds to the average passenger car in model year 2001, from 1968 cost and weight. While the cost to redesign an LSV to comply with the FMVSSs applicable to a passenger car would likely be greater than this average, we believe that the additional cost and weight attributed to specific safety technologies associated with FMVSSs would not be burdensome for a manufacturer to attain, particularly given that LSVs already must have brakes, lights, safety belts and other basic features.

The agency also received comment from a business, ZAP, that imports LSV above the GVWR limit adopted in this final rule. ZAP stated that it has marketed over 85,000 electric vehicles since 1994, and currently imports completed vehicles made in China. ZAP did not specify how many of these vehicles were classified as LSVs or how many of these vehicles were LSVs with a GVWR greater than the limit adopted in today's final rule.

ZAP stated that its new 2004 ZAP Worldcar vehicle would no longer be classified as a LSV, since its GVWR is 3,007 pounds. However, this final rule does not prevent ZAP from continuing to sell LSVs that meet the regulatory definition. The imported vehicles could either be redesigned or certified to all FMVSSs applicable to passenger cars, as explained for CAMEV. Further, ZAP already advertises a motor vehicle with a GVWR below 2,500 pounds that is not a LSV, i.e. , the SMART car.

NHTSA has analyzed this final rule under the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and determined that it will not impose any new information collection requirements as that term is defined by the Office of Management and Budget (OMB) in 5 CFR part 1320.

NHTSA has also analyzed this final rule under the National Environmental Policy Act and determined that it will have no significant impact on the human environment. LSV usage is very small in comparison to that of motor vehicles as a whole; therefore, any change to the LSV segment does not have a significant environmental effect.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 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 annually. This final rule does not result in annual expenditures exceeding the $100 million threshold.

Executive Order 13132 on “Federalism” 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.” The Executive Order defines this phrase 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.”

The agency has analyzed this rule in accordance with the principles and criteria set forth in Executive Order 13132 and has determined that it will not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement.

In the 1998 final rule, which established the LSV definition, the agency noted that:

63 FR at 33215. In a 1998 NPRM we revised this discussion by stating that:

65 FR 53219, 53220; September 1, 2000.

We are unaware of any existing state laws that would be preempted by today's final rule. We recognize that California's definition of “low-speed vehicle” establishes a maximum “unladen weight of 1,800 pounds” (Cal. Vehicle Code section 385.5). 7 Unlike GVWR, the unladen weight is the weight of the vehicle without occupants or cargo. (See, Cal. Vehicle Code Section 289). Today's final rule does not specify a maximum unladen weight for LSVs. Therefore, consistent with our past pronouncements regarding LSVs and preemption of State law, the addition of a maximum GVWR in today's final rule does not preempt California's definition of LSV.

This rule will not have substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

Executive Order 12988 requires that agencies review proposed regulations and legislation and adhere to the following general requirements: (1) The agency's proposed legislation and regulations shall be reviewed by the agency to eliminate drafting errors and ambiguity; (2) the agency's proposed legislation and regulations shall be written to minimize litigation; and (3) the agency's proposed legislation and regulations shall provide a clear legal standard for affected conduct rather than a general standard, and shall promote simplification and burden reduction.

When promulgating a regulation, Executive Order 12988, specifically requires that the agency must make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect, (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified, (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction, (4) specifies in clear language the retroactive effect, (5) specifies whether administrative proceedings are to be required before parties may file suit in court, (6) explicitly or implicitly defines key terms, and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.

NHTSA has reviewed this final rule according to the general requirements and the specific requirements for regulations set forth in Executive Order 12988. This final rule revises the definition of the term “low-speed vehicle (LSV)” in 49 CFR Part 571. This change does not preemptive any existing State law and does not have a retroactive effect. A petition for reconsideration or other administrative proceeding is not required before parties may file suit in court. However, this change does change a “key term” within the meaning of Executive Order 12988. The agency has made every effort to ensure that this key term has been explicitly defined.

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.

After reviewing the provisions of the final rule, pursuant to OMB's Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies (“Guidelines”) issued by the Office of Management and Budget (OMB) (67 FR 8452, Feb. 22, 2002) and published in final form by the Department of Transportation on October 1, 2002 (67 FR 61719), NHTSA has determined that nothing in this rulemaking action would result in “information dissemination” to the public, as that term is defined in the Guidelines.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us. As noted earlier, this rule is not economically significant, nor does it concern a safety risk with a disproportionate effect on children.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law ( e.g. , the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. In meeting that available and potentially applicable voluntary consensus standard, we are required by the Act to provide Congress, through OMB, with an explanation of the reasons for not using such standards. The agency specifically considered SAE J-2358 in the development of this final rule.

Anyone is able to search the electronic form of all submissions received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

Background

After passage of the Marine Mammal Protection Act (16 U.S.C. 1361, et seq. ) in 1972, we promulgated regulations at 50 CFR part 18 to implement this authority. We included in our proposed regulations a definition similar to that in Section 101(b)(2) of the MMPA for “authentic native articles of handicrafts and clothing” (37 FR 25524; December 1, 1972), part of which read:

“ * * * Items composed wholly or in some significant respect of natural materials, and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts. Traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting, so long as the use of pantographs, multiple carvers, or other mass copying devises, or other improved methods of production utilizing modern implements such as sewing machines, are not utilized .”

The final rule (37 FR 28173; December 21, 1972) added the requirement that these items must be “commonly produced on or before December 21, 1972” and read:

“* * * Items which (a) were commonly produced on or before December 21, 1972, and (b) are composed wholly or in some significant respect of natural materials, and (c) which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or similar mass copying devises, or other improved methods of production utilizing modern implements, such as sewing machines. Traditional native handicrafts include, but are not limited to weaving, carving, stitching, sewing, lacing, beading, drawing, and painting .”

Although our MMPA implementing regulations were published on December 21, 1972 as a final rule, we invited the public to provide comments, suggestions, and objections for a 60-day period. Based on comments received, we issued a proposed rule to amend our implementing regulations (38 FR 22143; August 16, 1973), followed by a final rule (38 FR 7262; February 25, 1974). The definition for “authentic native articles of handicrafts and clothing” at 50 CFR 18.3 was amended by the following additions: (1) The articles must have been made by an Indian, Aleut, or Eskimo; (2) the articles must be significantly altered from their natural form; (3) modern techniques at a tannery registered pursuant to § 18.23(c) may be used so long as no large scale mass production industry results; and (4) the formation of traditional native groups, such as cooperatives, is permitted as long as no large scale mass production results.

The regulations were enforced and subsequently challenged in court. While initially upheld in court, the U.S. District Court called for a thorough administrative review of the section of the regulations (50 CFR 18.23) that addresses the taking of northern sea otters under the native exemptions. Following the review, the Service published a notice of proposed rulemaking on November 14, 1988, to clarify the regulations as they apply to the sea otter (53 FR 45788). Those proposed regulations would prohibit all takings of sea otters by Alaska Natives for the purpose of creating and selling handicrafts or clothing. An interim rule was subsequently published on April 20, 1990 (55 FR 14973). This 1990 rule was, for the most part, identical to the 1974 rule. However, the rule included a qualifying statement with regard to sea otters that stated “[P]rovided that, it has been determined that no items created in whole or in part from sea otter meet part (a) [that is, “were commonly produced on or before December 21, 1972”] of this definition and therefore no such items may be sold” (55 FR 14973). We further stated in the rule that, following the completion of a management plan for northern sea otter, we would replace the interim rule with a final rule, if appropriate. The interim rule became effective on May 21, 1990. Although we developed and issued a “Conservation Plan for the Sea Otter in Alaska” in June 1994, we did not revisit the regulatory definition put into place by our interim rule, and the language still exists in 50 CFR 18.3.

In 1990, a number of parties challenged our definition as violating the MMPA. On July 17, 1991, in Didrickson v. U.S. Department of the Interior , the U.S. District Court for the District of Alaska ruled in favor of the Plaintiffs. The Court wrote that we had defined “authentic,” as used in the phrase, “authentic native articles of handicrafts and clothing * * *” (in the Native exemption section of the Act), “in such a way as to broaden [the Service's] own regulatory authority over [Native] activities that the plain language of the statute would not otherwise permit.” The Court further ruled that the MMPA did not mandate restriction of its Alaska native handicraft exemption to apply only to artifacts commonly produced on or before December 21, 1972. In its conclusion, the Court stated that, while its “opinion should not be construed as authorizing a “free-for-all” killing of hundreds of sea otters,” the Service “does not have the authority to regulate the harvesting of sea otters for purposes of creating native handicrafts absent a finding of depletion.” The Court also stated that the Service has the authority to take enforcement action against any takings that are wasteful. This decision was appealed to the Ninth Circuit Court of Appeals, which, on December 28, 1992, affirmed the District Court's ruling.

On June 4, 2004, we published a proposed rule (69 FR 31582) and requested public comment on the rulemaking to revise our regulations in 50 CFR part 18 and make them consistent with the court rulings described above. Specifically, the action would eliminate the requirement in 50 CFR 18.3 for “ Authentic native articles of handicrafts and clothing ” to have been commonly produced on or before December 21, 1972, and would delete the language at the end of the definition that states:

“ Provided that, it has been determined that no items created in whole or in part from sea otter meet part (a) of this definition and therefore no such items may be sold. ”

We received two comments on the proposed rule. One commenter fully supported the amendment and urged the agency to make the changes as soon as possible. The other commenter did not indicate whether they supported the amendment but, instead requested that the Secretary of the Department of the Interior reevaluate the regulations regarding native take exemptions should the southwest Alaska distinct population segment of the northern sea otter be listed as threatened under the U.S. Endangered Species Act and, therefore, automatically deemed depleted under the MMPA. This comment is beyond the scope of this rulemaking process, which is to amend the regulatory definition of “authentic native handicraft” consistent with a Court ruling. There is a separate rulemaking process that deals with the status of the population.

The Service has concluded that, based on the information presented above and, in consideration of public comments, amendment of the definition of “authentic native handicraft” is appropriate and is warranted to be in compliance with a Court ruling.

In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action. The Office of Management and Budget makes the final determination under Executive Order 12866.

a. This rule will not have an annual economic impact of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. There are no compliance costs to any sector of the economy. A cost-benefit analysis is not required. We do not expect that any significant economic impacts would result from the revision of this definition. The only expenses related to this were to the Federal Government to write the rule and required Record of Compliance, and to publish the final rule in the Federal Register ; these costs should not exceed $25,000.

b. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

c. This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

d. This rule will not raise novel legal or policy issues.

We certify that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). An initial/final Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.

This rule is not a major rule under 5 U.S.C. 804(2). This rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

a. This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required.

b. This rule will not produce a Federal mandate of $100 million or greater in any year. As such, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with Executive Order 12630, this rule does not have significant takings implications. We have determined that the rule has no potential takings of private property implications as defined by this Executive Order because it removes a regulatory definition determined by a Federal Court to exceed the statutory provisions of the MMPA. A takings implication assessment is not required.

In accordance with Executive Order 13132, this rule does not have significant Federalism effects. A Federalism assessment is not required. This rule will not have substantial direct effects on the State, in the relationship between the Federal Government and the State, or on the distribution of power and responsibilities among the various levels of government.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This regulation does not contain collections of information that require approval by the Office of Management and Budget under 44 U.S.C. 3501 et seq. The regulation will not impose new record keeping or reporting requirements on State or local governments, individuals, and businesses, or organizations.

We have considered this action with respect to Section 102(2)(C) of the National Environmental Policy Act of 1969, and have determined that the action is categorically excluded, pursuant to U.S. Department of the Interior criteria, from the NEPA process; the preparation of an Environmental Assessment is not required as defined by USDI categorical exclusion 1.10 (516 DM, Chapter 2, Appendix 1, Departmental Categorical Exclusions). This categorical exclusion exempts “ [p]olicies, directives, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature. ” Given that this rule amends a regulation, in response to a Court ruling, the exclusion applies to this action.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175 and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes on a Government-to-Government basis. We have evaluated possible effects on federally recognized Indian tribes and have determined that this rule will have a positive effect on tribes as it relieves a regulatory restriction consistent with a Court ruling.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule is not a significant regulatory action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.

The fishery for reef fish is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) that was prepared by the Gulf of Mexico Fishery Management Council (Council). This FMP was approved by NMFS and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

In response to a request from the Council, NMFS published an emergency rule (70 FR 8037, February 17, 2005) under section 305(c)(1) of the Magnuson-Stevens Act, that established trip limits for the commercial shallow-water and deep-water grouper fisheries in the exclusive economic zone of the Gulf of Mexico. The trip limits were, and remain, necessary to slow the rate of harvest of the available commercial grouper quotas, extend the fishing season, reduce the effects of derby fishing, and reduce the probability of overfishing.

The trips limits were originally proposed to the Council by representatives of the commercial reef fish fishery as follows: (1) On January 1, all vessels will be limited to a 10,000-lb (4,536-kg), gutted-weight (GW), trip limit for deep-water grouper and shallow-water grouper combined; (2) if on or before August 1 the fishery is estimated to have landed more than 50 percent of either the shallow-water grouper or the red grouper quota, then a 7,500-lb (3,402-kg) GW trip limit takes effect; and (3) if on or before October 1 the fishery is estimated to have landed more than 75 percent of either the shallow-water grouper or the red grouper quota, then a 5,500-lb (2,495-kg) GW trip limit takes effect. Because implementation of the original emergency rule occurred after January 1, NMFS revised item (1) above to reflect the appropriate implementation date, March 3. This extension of the emergency rule will include at § 622.44(h)(1)(i) the period beginning January 1; therefore, this emergency rule modifies item (1) to again reflect the January 1 date consistent with the intent of the original proposal. NMFS also adds one other minor clarification in this emergency rule to explain that, although the trip limits are for shallow-water grouper and deep-water grouper are combined, if either fishery has reached its quota and has been closed, no fish subject to the closure may be possessed under the applicable trip limit.

Under section 305(c)(3)(B) of the Magnuson-Stevens Act, NMFS may extend the effectiveness of an emergency rule for one additional period of 180 days, provided the public has had an opportunity to comment on the emergency rule and the Council is actively preparing proposed regulations to address the issue on a permanent basis.

NMFS solicited comments on the initial emergency rule through March 21, 2005, and received one comment in support of the emergency rule. NMFS concurs that the emergency was, and remains, necessary to reduce adverse effects of derby fishing, extend the fishing season, and reduce the probability of overfishing.

The Council is preparing a regulatory amendment and associated proposed regulations which will address measures, including trip limits, to moderate the rate of harvest in the Gulf grouper commercial fishery. Those measures, if approved and implemented by NMFS, would replace this emergency rule. Action to address these issues via the proposed regulations associated with the regulatory amendment cannot be implemented before the current emergency rule expires on August 17, 2005. Extension of the emergency rule is necessary to avoid a regulatory lapse and to ensure that the rate of harvest remains under proper control so the season can be extended as much as possible and the risk of overfishing is minimized.

Additional details concerning the basis for these commercial trip limits are contained in the preamble to the initial emergency rule and are not repeated here.

The Assistant Administrator for Fisheries, NOAA (AA), has determined that this extension of the emergency rule is necessary to minimize adverse social and economic impacts, ( i.e., derby fishing, market gluts, lower ex-vessel prices, potential safety-at-sea issues, and a shortened fishing season). The AA has also determined that this rule is consistent with the Magnuson-Stevens Act and other applicable laws.

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

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

The AA finds good cause to waive the requirement to provide prior notice and opportunity for public comment, pursuant to authority set forth at U.S.C. 553(b)(B), as such procedures would be impracticable and contrary to the public interest. This emergency rule merely extends the commercial trip limits established by the initial emergency rule which was subject to public comment. The only comment received supported the implementation of the emergency rule. This extension of the emergency rule is necessary to continue the moderation of the rate of harvest of the available quotas, thereby helping to keep the fishery open for more of the fishing year and reducing the effects of derby fishing and the associated adverse social and economic impacts. As previously indicated, preliminary January data indicated a 23-percent increase in landings over the comparable time frame in 2004. An early and disruptive closure is highly likely if the trip limits were to lapse. For these same reasons, under 5 U.S.C. 553(d)(3), the AA finds good cause that a 30-day delay in the effective date of this emergency rule would be contrary to the public interest.