On December 1, 2004, we published (at 69 FR 69805) interim regulations to revise the normal cost percentage under the Federal Employees' Retirement System (FERS) Act of 1986, Public Law 99-335, 100 Stat. 514, based on changed economic assumptions and demographic factors adopted by the Board of Actuaries of the Civil Service Retirement System. Those changed economic assumptions (principally the change in expected investment return from 6.75 percent to 6.25 percent) require corresponding changes in factors used to produce actuarially equivalent benefits when required by the FERS Act. The revised factors were effective on October 1, 2004. To implement these changes in factors, we issued interim regulations on December 1, 2004. At that time we also requested comments on the interim regulations. We received no comments. Accordingly we are now adopting the interim regulation as final without change.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will only affect retirement payments to retired employees, spouses, and former spouses.

This final rule is issued under Marketing Order No. 920 as amended (7 CFR part 920), regulating the handling of kiwifruit grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA will rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule revises the pack requirements for California kiwifruit under the order. This rule requires that Size 39 and Size 42 fruit not vary in size by more than 3/8 inch, regardless of pack type. The Committee unanimously recommended these changes at its March 2, 2005, meeting.

Currently, three tables are included under the pack regulation to designate sizes and list the size variances permitted for the different pack arrangements used in the industry. This rule consolidates the three tables into one table that lists size designations with applicable size variation tolerances for kiwifruit regardless of the pack or container type. This rule is expected to simplify requirements for the industry, reduce handler packing costs, increase grower returns, and increase flexibility in handler packing operations.

Section 920.52 of the order authorizes the establishment of pack requirements. Section 920.302(a)(4) of the order's regulations specifies pack requirements for fresh shipments of California kiwifruit. Pack requirements include the specific arrangement, size, weight, count, or grade of a quantity of kiwifruit in a particular type and size of container.

Section 920.302 of the order's regulations specifies grade, size, pack, and container regulations for the fresh shipment of California kiwifruit. This section contains three tables regarding pack. One table in § 920.302(a)(4)(iii) specifies size designations for kiwifruit packed in volume fill containers (such as bags or bulk containers). These size designations are based on the maximum number of pieces of fruit per 8-pound sample. Two tables in § 920.302 specify size variation tolerances. One table in § 920.302(a)(4)(ii)(B) is applicable to volume fill containers and lists size designations with the corresponding size variation tolerance listed by diameter. The other table in § 920.302(a)(4)(ii)(A) is applicable to kiwifruit packed in trays and lists the variation tolerance in diameter by count (number of pieces of kiwifruit packed in a tray).

Since 1989, there have been two different size variation tolerances for Size 39 and Size 42 kiwifruit, depending on style of pack. The majority of Size 39 and Size 42 kiwifruit is initially packed in volume fill containers and must meet a size variation tolerance of 3/8 -inch. It has become more common for some of the fruit to then be restyled (repacked) into trays. In fact, the current estimate is that 10 percent of the crop is restyled into trays. All kiwifruit restyled within the production area must be reinspected.

Restyling fruit from volume fill containers into trays may require resizing the fruit because the size variation tolerance differs for the two containers. Fruit packed in trays that is 39 and 42 count must meet a size variation tolerance of 1/4 -inch. In order to meet the more restrictive 1/4 -inch tolerance, handlers must resize the fruit. Resizing is costly and slows down the restyling process. In addition, during the initial packing process, pack styles can change several times daily depending upon market demand. Resizing may also reduce returns to growers. Thus, the Committee recommended changing the size variation requirement for Size 39 and Size 42 kiwifruit from 1/4 inch to 3/8 inch when packed in cell compartments, cardboard fillers, or molded trays.

The Committee also recommended revising the regulations to specify one standard size variation tolerance of 3/8 -inch for Size 39 and Size 42 kiwifruit, regardless of whether the fruit is packed in volume fill containers or trays. To facilitate this change the three tables under the pack regulation will be consolidated into one that lists both size designations and their applicable size variation tolerances for fruit packed in all container types. Additionally, clarifying language that was inadvertently omitted from under the first table (Count) in prior rulemaking will be restored. The language clarifies that the average weight of all sample units in a lot must weigh at least 8 pounds, but no sample unit may be more than 4 ounces less than 8 pounds. This rule is expected to simplify requirements for the industry, reduce handler packing costs, increase grower returns, and increase flexibility in handler packing operations. Section 920.302 is revised accordingly.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 45 handlers of California kiwifruit subject to regulation under the marketing order and approximately 275 growers in the production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those whose annual receipts are less than $6,000,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000. None of the 45 handlers subject to regulation have annual kiwifruit sales of at least $6,000,000. In addition, six growers subject to regulation have annual sales exceeding $750,000. Therefore, a majority of the kiwifruit handlers and growers may be classified as small entities.

This rule relaxes the pack requirements currently specified in § 920.302 for kiwifruit. The rule creates one standard size variation tolerance to be applied uniformly to all container types. Additionally, the three tables currently under the pack regulation will be consolidated into one. By allowing handlers to utilize a single table for kiwifruit size designations and size variation tolerances, regardless of pack or container, this rule is expected to simplify requirements for the industry, reduce handler packing costs, increase grower returns, and increase flexibility in handler packing operations. Authority for this action is provided in § 920.52 of the order, which authorizes the establishment of pack requirements.

The impact of this change on handlers was discussed by the Committee. Approximately 10 percent of shipments are restyled from a volume fill container to a tray pack. Based on an industry survey, restyling costs an average of $.07 per tray equivalent. Since there will no longer be a need for handlers to resize the fruit when restyling from a volume fill container to a tray pack, it is estimated that restyling costs per tray equivalent will decrease to $.035 per tray equivalent. The average of Size 39 and 42 fruit sold over a 6-year period is approximately 22 percent of the crop. Current restyling costs are obtained by calculating 10 percent of the average of Size 39 and 42 fruit (22 percent of the total packout) and multiplying that number by the estimated cost per tray equivalent.

Based on a total crop of 6 million tray equivalents (te) the cost savings for repacking/restyling will be around $9,000. This amount is obtained by subtracting $9,240 from $18,480 from the table below, which is the difference between the restyling costs incurred when fruit must be resized and restyling costs when fruit does not need to be resized.

This change reduces packing costs since handlers will no longer need to resize fruit to the more restrictive 1/4 -inch tolerance in the restyling (repacking) process. The packing process will also move more rapidly since frequent resizing adjustments are no longer necessary. Fewer resizing adjustments may also mean increased returns to growers.

The Committee considered the alternative of not revising the rule, but this was not considered viable because of the confusion currently experienced because of differences in the size variation tolerance in the different packs and the resulting increased packing costs. The Committee reasoned that the only viable alternative was to create a standard size variation tolerance regardless of pack.

This rule creates one size variation standard that will be applied uniformly to all container types as well as consolidate the three tables currently in the pack regulation of the order into one table. Accordingly, these actions do not impose any additional reporting or recordkeeping requirements on either small or large kiwifruit handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sectors.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule. In fact, this action will relax the current requirements under the U.S. Standards for Grade of Kiwifruit (7 CFR 51.2335 through 51.2340) issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621 through 1627) with regard to “fairly uniform in size.”

In addition, the Committee's meeting was widely publicized throughout the kiwifruit industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the March 2, 2005, meeting, was a public meeting and all entities, both large and small, were encouraged to express their views on these issues.

A proposed rule concerning this action was published in the Federal Register on June 22, 2005 (70 FR 36060). Copies of the rule were mailed or sent via facsimile to all Committee members and kiwifruit handlers. Finally, the rule was made available through the Internet by USDA and the Office of the Federal Register. A 20-day comment period ending July 12, 2005, was provided to allow interested persons to respond to the proposal. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because this rule should be in place by September 10, 2005, which is prior to the start of the new shipping season. This rule relaxes requirements currently in effect. Further, handlers are aware of this rule, which was recommended at a public meeting. Also, a 20-day comment period was provided for in the proposed rule and no comments were received.

The Board published a final rule in the Federal Register of August 2, 2005 (70 FR 44256), that amended certain provisions of Regulation BB, effective September 1, 2005. The Paperwork Reduction Act section for this final rule included detailed information about the paperwork burden estimate for State Member Banks that are required to comply with the regulation. Inadvertently, the Board omitted from this Paperwork Reduction Act calculation the burden hours for a couple of optional requirements. This document corrects the error by revising the burden estimate on page 44265, in the second column, as follows:

Board:

Number of Respondents: 914.

Estimated Time per Response: Small business and small farm loan register, 219 hours; consumer loan data, 326 hours; other loan data, 25 hours; assessment area delineation, 2 hours; small business and small farm loan data, 8 hours; community development loan data, 13 hours; HMDA out-of-MSA loan data, 253 hours; data on lending by a consortium or third party, 17 hours; affiliated lending data, 38 hours; request for designation as a wholesale or limited purpose bank, 4 hours; and public file, 10 hours.

Total Estimated Annual Burden: 131,662 hours.

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

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the rules docket number and be submitted in duplicate to the address specified above. The Administrator will consider all communications received on or before the closing date for comments. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Persons wishing the FAA to acknowledge receipt of their comments submitted in response to these special conditions must include with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. NM325.” The postcard will be date stamped and returned to the commenter.

On September 22, 2002, Gulfstream Aerospace LP (GALP), Ben Gurion Airport, Tel Aviv, Israel, applied for a type certificate for its new Model G150 airplane. The Gulfstream Model G150 is a twin-engine, pressurized executive jet airplane with standard seating provisions for 11 passenger/crew and allowance for baggage and optional equipment. This airplane will have a maximum takeoff weight of 26,000 pounds and will have two aft-mounted Honeywell TFE 731-40AR-200G engines.

Under the provisions of 14 CFR 21.17, GALP must show that Gulfstream Model 150 airplanes meet the applicable provisions of part 25, effective February 1, 1965, as amended by Amendment 25-1 through Amendment 25-107.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , 14 CFR part 25) do not contain adequate or appropriate safety standards for Gulfstream Model 150 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model 150 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36; and the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.”

Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.17(a)(2).

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model.

Gulfstream Model G150 airplanes offer interior arrangements that include single-occupant side-facing seat installations. One arrangement includes an aft right-hand (RH) toilet installation, which will be approved for occupancy during taxi, takeoff, and landing. The belted toilet seat is a single-occupant side-facing seating system located in the aft, RH portion of the cabin. It consists of a toilet assembly, toilet cabinet, forward partition, contact pad, and restraint system (lap belt).

The existing regulations do not provide adequate or appropriate safety standards for occupants of side-facing seats. In order to provide a level of safety that is equivalent to that afforded occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785. The requirements contained in these special conditions consist of both test conditions and injury pass/fail criteria.

Section 25.785(b), “Seats, berths, safety belts, and harnesses,” requires that “each seat * * * at each station designated as occupiable during takeoff and landing must be designed so that a person making proper use of these facilities will not suffer serious injury in an emergency landing as a result of the inertia forces specified in §§ 25.561 and 25.562.” Additionally, § 25.562, “Emergency landing dynamic conditions,” requires dynamic testing of all seats occupied during takeoff and landing. The relative forces and injury mechanisms affecting the occupants of side-facing seats during an emergency landing are different from those of standard forward- or aft-facing seats, or seats equipped with conventional restraint systems.

Side-facing Seats: Amendment 25-64, which adopted § 25.562, enhances occupant protection during emergency landing conditions. Although the rule was written with forward- and aft-facing seats in mind, the orientation of the seat does not change the relevant test conditions, and the rule applies to all seats regardless of orientation.

The dynamic test conditions included in § 25.562 are directly applicable to side-facing seats. However, for injury pass/fail criteria, the orientation of the seat may be significant. For forward-, aft-, and side-facing seats the injury criteria are currently limited to head, spine, and femur loads. The head and lumbar loads are critical but the femur load is not critical. For a side-facing seat, additional injury parameters may be identified and evaluation of those parameters would be necessary to provide an acceptable level of safety.

When evaluating side-facing seats the following should be taken into consideration:

1. The isolation of one occupant from another. Occupants should not rely on impact with other occupants to provide energy absorption; body-to-body impacts are unacceptable.

2. The restraint system and the retention of occupants in the seat. Addressing this concern may necessitate providing a means of restraint for the lower limbs as well as the torso. Failure to limit the forward (in the airplane's coordinate system) travel of the lower limbs may cause the occupant to come out of the restraint system or produce severe injuries due to the resulting position of the restraint system and/or twisting (torsional load) of the lower lumber spinal column.

3. The load limit in the torso in the lateral direction. Human tolerance for side-facing seats differs from that for forward- or aft-facing seats.

The automotive industry has developed test procedures and occupant injury criteria appropriate for side impact conditions. The criteria includes limiting lateral pelvic accelerations and using the “Thoracic Trauma Index,” which is defined in 49 CFR 571.214. Use of the Side Impact Dummy (SID) identified in 49 CFR part 572, subpart F, rather than the Hybrid II dummy identified in 49 CFR part 572, subpart B, is required to evaluate these parameters. The Hybrid II dummy is used in the current § 25.562 test. Testing with a SID is the best means available to assess the injury potential of a sideward impact condition. Such an evaluation is considered necessary to provide an acceptable level of safety for side-facing seats.

The side-facing seat special conditions have been determined to result in a level of safety equivalent to that provided by the injury pass/fail criteria in § 25.562 for forward- or aft-facing seats.

As discussed above, these special conditions are applicable to Gulfstream Model G150 airplanes. Should GALP apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on Gulfstream Model G150 airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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

In addition to the airworthiness standards of §§ 25.562 and 25.785, the minimum acceptable standards for dynamic certification of single-occupant side-facing seats on Gulfstream Model G150 airplanes are as follows:

(a) Existing Criteria: All injury protection criteria of §§ 25.562(c)(1) through (c)(6) apply to the occupant of a side-facing seat. Head Injury Criterion (HIC) assessments are required only for head contact with the seat and/or adjacent structures.

(b) Body-to-Wall/Furnishing Contact: The seat must be installed immediately aft of a structure, such as an interior wall or furnishing, that will support the pelvis, upper arm, chest, and head of an occupant seated next to the structure. A conservative representation of the structure and its stiffness must be included in the tests. It is recommended, but not required, that the contact surface of this structure be covered with at least two inches of energy-absorbing protective padding (foam or equivalent), such as Ensolite.

(c) Thoracic Trauma: The Thoracic Trauma Index (TTI) injury criterion must be substantiated by dynamic test or by rational analysis, based on a previous test or tests of a similar seat installation. Testing must be conducted with a Side Impact Dummy (SID), as defined in 49 CFR part 572, subpart F, or its equivalent. The TTI must be less than 85, as defined in 49 CFR part 572, subpart F. The TTI data must be processed as defined in Federal Motor Vehicle Safety Standard (FMVSS) part 571.214, section S6.13.5.

(d) Pelvis: Pelvic lateral acceleration must be shown by dynamic test or by rational analysis based on previous test(s) of a similar seat installation to not exceed 130g. Pelvic acceleration data must be processed as defined in FMVSS part 571.214, section S6.13.5.

(e) Shoulder Strap Loads: Where upper torso straps (shoulder straps) are used for occupants, tension loads in individual straps must not exceed 1,750 pounds. If dual straps are used for restraining the upper torso, the total strap tension loads must not exceed 2,000 pounds.

The above performance measures must not be exceeded during the following dynamic tests:

(a) Conduct a longitudinal test per § 25.562(b)(2) with a SID, undeformed floor, no yaw, and with all lateral structural supports (armrests/walls).

Pass/fail injury assessments: The TTI and pelvic acceleration.

(b) Conduct a longitudinal test per § 25.562(b)(2) with the Hybrid II Anthropomorphic Test Dummy (ATD), deformed floor, 10 degrees yaw, and with all lateral structural supports (armrests/walls).

Pass/fail injury assessments: The HIC, upper torso restraint load, restraint system retention and pelvic acceleration.

(c) Conduct a vertical test per § 25.562(b)(1) with a Hybrid II ATD with existing pass/fail criteria.

The FAA has determined that the substance of these special conditions has previously been subject to the public comment process. These particular special conditions were recently issued and only three non-substantive comments were received during the public comment period. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments, as they may desire. Communications should identify the rules docket number and be submitted in duplicate to the address specified above. The Administrator will consider all communications received on or before the closing date for comments. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Persons wishing the FAA to acknowledge receipt of their comments submitted in response to these special conditions must include with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. NM324”. The postcard will be date stamped and returned to the commenter.

On May 1, 2004, the Federal Express Corporation applied for a supplemental type certificate for the installation and operation of a head-up display (HUD) and an infrared enhanced flight vision system (EFVS) on McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes. The original type certificate for the MD-10-10F and MD-10-30F airplanes is A22WE, revision 7, dated May 24, 2002.

The McDonnell Douglas Model MD-10-10F and MD-10-30F are transport category cargo-carrying airplanes that operate with a crew of two and carry no passengers. The model MD-10-10F airplane has a wing span of 155 feet, a length of 181 feet, a maximum takeoff gross weight of 440,000 pounds, is powered by three General Electric CF6-6D or CF6-K turbofan engines, and has a maximum range of 5,514 nautical miles. The Model MD-10-30F airplane has a wing span of 165 feet; a length of 182 feet; a maximum takeoff gross weight of 565,000 pounds or 580,000 pounds, depending on the serial number; is powered by three General Electric CF6-50C2 turbofan engines; and has a maximum range of 6,500 nautical miles.

The electronic infrared image displayed between the pilot and the forward windshield represents a novel or unusual design feature in the context of 14 CFR 25.773. Section 25.773 was not written in anticipation of such technology. The electronic image has the potential to enhance the pilot's awareness of the terrain, hazards and airport features. At the same time, the image may partially obscure the pilot's direct outside compartment view. Therefore, the FAA needs adequate safety standards to evaluate the EFVS to determine that the imagery provides the intended visual enhancements without undue interference with the pilot's outside compartment view. The FAA intent is that the pilot will be able to use a combination of the information seen in the image and the natural view of the outside scene seen through the image, as safely and effectively as a pilot compartment view without an EVS image that is compliant with § 25.773.

Although the FAA has determined that the existing regulations are not adequate for certification of EFVSs, it believes that EFVSs could be certified through application of appropriate safety criteria. Therefore, the FAA has determined that special conditions should be issued for certification of EFVS to provide a level of safety equivalent to that provided by the standard in § 25.773.

On January 9, 2004, the FAA published revisions to operational rules in 14 CFR parts 1, 91, 121, 125, and 135 to allow aircraft to operate below certain altitudes during a straight-in instrument approach while using an EFVS to meet visibility requirements.

Prior to this rule change, the FAA issued Special Conditions No. 25-180-SC, which approved the use of an EVS on Gulfstream Model G-V airplanes. Those special conditions addressed the requirements for the pilot compartment view and limited the scope of the intended functions permissible under the operational rules at the time. The intended function of the EVS imagery was to aid the pilot during the approach and allow the pilot to detect and identify the visual references for the intended runway down to 100 feet above the touchdown zone. However, the EVS imagery alone was not to be used as a means to satisfy visibility requirements below 100 feet.

The recent operational rule change expands the permissible application of certain EVSs that are certified to meet the new EFVS standards. The new rule will allow the use of EFVSs for operation below the minimum descent altitude (MDA) or decision height (DH) to meet new visibility requirements of § 91.175(l). The purpose of these special conditions is not only to address the issue of the “pilot compartment view,” as was done by Special Conditions No. 25-180-SC, but also to define the scope of intended function consistent with § 91.175(l) and (m).

Under the provisions of 14 CFR 21.101, the Federal Express Corporation must show that the McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes, as modified, comply with the regulations in the U.S. type certification basis established for those airplanes. The U.S. type certification basis for the airplanes is established in accordance with §§ 21.21 and 21.17, and the type certification application date. The U.S. type certification basis for these model airplanes is listed in Type Certificate Data Sheet No. A22WE, revision 7, dated May 24, 2005, which covers all variants of the DC-10, MD-10, and MD-11 airplanes.

In addition, the certification basis includes certain special conditions and exemptions that are not relevant to these special conditions. Also, if the regulations incorporated by reference do not provide adequate standards with respect to the change, the applicant must comply with certain regulations in effect on the date of application for the change.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , part 25 as amended) do not contain adequate or appropriate safety standards for the McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes modified by Federal Express because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

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

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

The McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes will incorporate an EFVS, which is a novel or unusual design feature. The EFVS is a novel or unusual design feature because it projects a video image derived from a FLIR camera through the HUD. The EFVS image is projected in the center of the “pilot compartment view,” which is governed by § 25.773. The image is displayed with HUD symbology and overlays the forward outside view. Therefore, § 25.773 does not contain appropriate safety standards for the EFVS display.

Operationally, during an instrument approach, the EFVS image is intended to enhance the pilot's ability to detect and identify “visual references for the intended runway” [see § 91.175(l)(3)] to continue the approach below decision height or minimum descent altitude. Depending on atmospheric conditions and the strength of infrared energy emitted and/or reflected from the scene, the pilot can see these visual references in the image better than he or she can see them through the window without EFVS.

Scene contrast detected by infrared sensors can be much different from that detected by natural pilot vision. On a dark night, thermal differences of objects which are not detectable by the naked eye will be easily detected by many imaging infrared systems. On the other hand, contrasting colors in visual wavelengths may be distinguished by the naked eye but not by an imaging infrared system. Where thermal contrast in the scene is sufficiently detectable, the pilot can recognize shapes and patterns of certain visual references in the infrared image. However, depending on conditions, those shapes and patterns in the infrared image can appear significantly different than they would with normal vision. Considering these factors, the EFVS image needs to be evaluated to determine that it can be accurately interpreted by the pilot.

The image may improve the pilot's ability to detect and identify items of interest. However, the EFVS needs to be evaluated to determine that the imagery allows the pilot to perform the normal duties of the flightcrew and adequately see outside the window through the image, consistent with the safety intent of § 25.773(a)(2).

Compared to a HUD displaying the EFVS image and symbology, a HUD that only displays stroke-written symbols is easier to see through. Stroke symbology illuminates a small fraction of the total display area of the HUD, leaving much of that area free of reflected light that could interfere with the pilot's view out the window through the display. However, unlike stroke symbology, the video image illuminates most of the total display area of the HUD (approximately 30 degrees horizontally and 25 degrees vertically) which is a significant fraction of the pilot compartment view. The pilot cannot see around the larger illuminated portions of the video image, but must see the outside scene through it.

Unlike the pilot's external view, the EFVS image is a monochrome, two-dimensional display. Many, but not all, of the depth cues found in the natural view are also found in the image. The quality of the EFVS image and the level of EFVS infrared sensor performance could depend significantly on conditions of the atmospheric and external light sources. The pilot needs adequate control of sensor gain and image brightness, which can significantly affect image quality and transparency ( i.e. , the ability see the outside view through the image). Certain system characteristics could create distracting and confusing display artifacts. Finally, because this is a sensor-based system intended to provide a conformal perspective corresponding with the outside scene, the system must be able to ensure accurate alignment.

Therefore, safety standards are needed for each of the following factors:

• An acceptable degree of image transparency;

• Image alignment;

• Lack of significant distortion; and

• The potential for pilot confusion or misleading information.

Section 25.773, Pilot compartment view, specifies that “Each pilot compartment must be free of glare and reflection that could interfere with the normal duties of the minimum flight crew * * *” In issuing § 25.773, the FAA did not anticipate the development of EFVSs and does not consider § 25.773 to be adequate to address the specific issues related to such a system. Therefore, the FAA has determined that special conditions are needed to address the specific issues particular to the installation and use of an EFVS.

The EFVS is intended to function by presenting an enhanced view during the approach. This enhanced view would help the pilot to see and recognize external visual references, as required by § 91.175(l), and to visually monitor the integrity of the approach, as described in FAA Order 6750.24D (“Instrument Landing System and Ancillary Electronic Component Configuration and Performance Requirements,” dated March 1, 2000).

Based on this approved functionality, users would seek to obtain operational approval to conduct approaches—including approaches to Type I runways—in visibility conditions much lower than those for conventional Category I.

The purpose of these special conditions is to ensure that the EFVS to be installed can perform the following functions:

• Present an enhanced view that would aid the pilot during the approach.

• Provide enhanced flight visibility to the pilot that is no less than the visibility prescribed in the standard instrument approach procedure.

• Display an image that the pilot can use to detect and identify the “visual references for the intended runway” required by § 91.175(l)(3) to continue the approach with vertical guidance to 100 feet height above the touchdown zone elevation.

Depending on the atmospheric conditions and the particular visual references that happen to be distinctly visible and detectable in the EFVS image, these functions would support its use by the pilot to visually monitor the integrity of the approach path.

Compliance with these special conditions does not affect the applicability of any of the requirements of the operating regulations ( i.e. , 14 CFR parts 91, 121, and 135). Furthermore, use of the EFVS does not change the approach minima prescribed in the standard instrument approach procedure being used; published minima still apply.

The FAA certification of this EFVS is limited as follows:

• The infrared-based EFVS image will not be certified as a means to satisfy the requirements for descent below 100 feet height above touchdown (HAT).

• The EFVS may be used as a supplemental device to enhance the pilot's situational awareness during any phase of flight or operation in which its safe use has been established.

An EFVS image may provide an enhanced image of the scene that may compensate for any reduction in the clear outside view of the visual field framed by the HUD combiner. The pilot must be able to use this combination of information seen in the image and the natural view of the outside scene seen through the image as safely and effectively as the pilot would use a pilot compartment view without an EVS image that is compliant with § 25.773. This is the fundamental objective of the special conditions.

The FAA will also apply additional certification criteria, not as special conditions, for compliance with related regulatory requirements, such as §§ 25.1301 and 25.1309. These additional criteria address certain image characteristics, installation, demonstration, and system safety.

Image characteristics criteria include the following:

• Resolution,

• Luminance,

• Luminance uniformity,

• Low level luminance,

• Contrast variation,

• Display quality,

• Display dynamics ( e.g. , jitter, flicker, update rate, and lag), and

• Brightness controls.

Installation criteria address visibility and access to EFVS controls and integration of EFVS in the cockpit.

The EFVS demonstration criteria address the flight and environmental conditions that need to be covered.

The FAA also intends to apply certification criteria relevant to high intensity radiated fields (HIRF) and lightning protection.

As discussed above, these special conditions are applicable to McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes. Should the Federal Express Corporation apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A22WE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on McDonnell Douglas Model MD-10-10F and MD-10-30F airplanes modified by the Federal Express Corporation. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

1. The EFVS imagery on the HUD must not degrade the safety of flight or interfere with the effective use of outside visual references for required pilot tasks during any phase of flight in which it is to be used.

2. To avoid unacceptable interference with the safe and effective use of the pilot compartment view, the EFVS device must meet the following requirements:

a. The EFVS design must minimize unacceptable display characteristics or artifacts ( e.g. noise, “burlap” overlay, running water droplets) that obscure the desired image of the scene, impair the pilot's ability to detect and identify visual references, mask flight hazards, distract the pilot, or otherwise degrade task performance or safety.

b. Control of EFVS display brightness must be sufficiently effective in dynamically changing background (ambient) lighting conditions to prevent full or partial blooming of the display that would distract the pilot, impair the pilot's ability to detect and identify visual references, mask flight hazards, or otherwise degrade task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high workload phase of flight ( e.g. , low visibility instrument approach).

c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the EFVS image on demand.

d. The EFVS image on the HUD must not impair the pilot's use of guidance information or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, windshear guidance, TCAS resolution advisories, or unusual attitude recovery cues.

e. The EFVS image and the HUD symbols—which are spatially referenced to the pitch scale, outside view and image—must be scaled and aligned ( i.e. , conformal) to the external scene. In addition, the EFVS image and the HUD symbols—when considered singly or in combination—must not be misleading, cause pilot confusion, or increase workload. There may be airplane attitudes or cross-wind conditions which cause certain symbols ( e.g. , the zero-pitch line or flight path vector) to reach field of view limits, such that they cannot be positioned conformally with the image and external scene. In such cases, these symbols may be displayed but with an altered appearance which makes the pilot aware that they are no longer displayed conformally (for example, “ghosting”).

f. A HUD system used to display EFVS images must, if previously certified, continue to meet all of the requirements of the original approval.

3. The safety and performance of the pilot tasks associated with the use of the pilot compartment view must not be degraded by the display of the EFVS image. These tasks include the following:

a. Detection, accurate identification and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other hazards of flight.

b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.

4. Compliance with these special conditions will enable the EFVS to be used during instrument approaches in accordance with § 91.175(l) such that it may be found acceptable for the following intended functions:

a. Presenting an image that would aid the pilot during a straight-in instrument approach.

b. Enabling the pilot to determine that there is sufficient “enhanced flight visibility,” as required by § 91.175(l)(2), for descent and operation below minimum descent altitude/decision height (MDA)/(DH).

c. Enabling the pilot to use the EFVS imagery to detect and identify the “visual references for the intended runway,” required by § 91.175(l)(3), to continue the approach with vertical guidance to 100 feet height above touchdown zone elevation.

5. Use of EFVS for instrument approach operations must be in accordance with the provisions of § 91.175(l) and (m). Appropriate limitations must be stated in the Operating Limitations section of the airplane flight manual to prohibit the use of the EFVS for functions that have not been found to be acceptable.

You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain McDonnell Douglas airplanes. That NPRM was published in the Federal Register on March 22, 2005 (70 FR 14432). That NPRM proposed to require a general visual inspection for damage to the Firex discharge pipes and wye assembly of the fire extinguishing system of the number 2 engine; and corrective and other specified actions, as applicable.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been received on the NPRM.

Since we issued the NPRM, Boeing has released Boeing Alert Service Bulletin DC10-26A065, Revision 1, dated May 20, 2005; and Boeing Alert Service Bulletin MD11-26A060, Revision 1, dated May 10, 2005. We have reviewed the procedures in the revised service bulletins and determined that they are essentially the same as those in the original issues of the service bulletins, with no additional work required. The revised service bulletins show an increase in the cost for required parts. However, we have determined that this increase will not have a significant impact on the cost to operators. Therefore, we have revised paragraphs (c) and (f) in the final rule to specify the revised service bulletins as the primary sources of service information; and revised the “Costs of Compliance” section in the final rule to reflect the increased parts cost. We have also inserted new paragraph (g) in the final rule to give credit for modifications already accomplished using the original issues of the service bulletins and re-identified paragraph (g) of the NPRM as paragraph (h) in the final rule.

One commenter supports the intent of the subject NPRM and the proposed actions of the AD.

One commenter agrees with the intent of the NPRM but requests that we revise the compliance time from 12 months to 18 months. The commenter states that a compliance time of 12 months will force operators to perform required modifications during line maintenance between heavy maintenance check intervals. The commenter states that performing the modifications during heavy maintenance checks in a hangar environment, instead of during line operations, would reduce the chances of modification errors. The commenter states that it has not had any reports of problems with delivery of the Firex agent when the engine fire extinguishing system was activated and asserts that an additional six months added to the compliance time would have no significant impact on safety.

We agree with this request. We have re-evaluated all available reports and have determined that increasing the compliance time by six months will not have any significant impact on safety. Therefore, we have revised the compliance time to 18 months in the final rule.

We discovered a math error in the “Costs of Compliance” section of the NPRM. The total number of U.S.-registered airplanes in the “Inspection Costs” table is shown as 343; it should have been 453. Though changing the number of airplanes from 343 to 453 appears to increase costs for operators, we have determined that no additional burden is imposed on operators because 453 is the number of airplanes actually identified by the service information as referenced in the applicability of this AD. We have revised the “Inspection Costs” table in the final rule to reflect this correction.

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

There are about 530 airplanes of the affected design in the worldwide fleet. The following tables provide the estimated costs for U.S. operators to comply with this AD. The required actions will be performed at an estimated average labor rate of $65 per work hour.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Boeing Model 777-200 and -300 series airplanes. That action, published in the Federal Register on February 15, 2005 (70 FR 7681), proposed to require inspecting the valve control and indication wire bundles of the fuel system of the wing rear spar for discrepancies, and corrective action if necessary.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been submitted on the proposed AD.

One commenter, the airplane manufacturer, concurs with the content of the proposed AD. Another commenter states that it has done the inspection specified in the service information referenced in the proposed AD on all of its Model 777-200 series airplanes.

One commenter concurs with the intent of the proposed AD, but points out some inconsistencies found in the Accomplishment Instructions of the referenced service bulletin. The commenter states that the service bulletin specifies leaving the wire bundle intact, according to the original factory installation, if the inspection does not reveal any wire chafing; however, the service bulletin also specifies modifying the wire bundle routing by installing additional new hardware, such as spacers, if any chafing is found.

The commenter also states that the intent of the proposed AD is to make sure that there is no wire chafing against the structure. The commenter believes that there will potentially be two different aircraft configurations if the modification is required. The commenter states that the configuration with no spacers may cause the wire bundle to rub against the structure in the future. The commenter adds that, without spacers installed, there is no way to positively prove in the future that the proposed AD was complied with in the past. The commenter prefers to modify the wire bundle routing (adding new spacers) even if there is currently no chafing found, in order to keep common configuration within the fleet and prevent potential problems in the future.

We infer that the commenter is asking for clarification about its perceived inconsistencies in the referenced service bulletin. We agree. The service bulletin describes procedures for inspecting the wire bundles in the wing rear spar for three discrepancies (i.e., wire chafing, wire damage, and any missing spacer at each of the five clamping points). The commenter believes there are only two discrepancies (i.e., wire chafing and wire damage). As a result, the commenter's statement that the wire bundle is left intact if the inspection does not reveal any wire chafing is incorrect. There are two conditions that need to be met for the wire bundle to be “left intact.” The service bulletin specifies “if no wire bundle damage or chafing is found” and “if the wire bundle routing is in compliance, no more action is required.” Wire bundle routing compliance is defined in the service bulletin as “at least one spacer is found installed at each of the five clamping points.” In addition, the service bulletin specifies “if no chafing or damage is found” and “if the wire bundle routing is not in compliance, make a modification to the wire bundle routing.” The modification involves installing a spacer, screw, clip nut, and clamp, as applicable, at any clamping point with no spacer. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition of this AD ( i.e., wire chafing and damage).

In addition, we do not agree with the commenter's statement there is no way to positively prove in the future that the AD was complied with in the past. Compliance with an AD is documented in the permanent records of the affected airplanes and can be audited by a principal maintenance inspector. Therefore, we have made no change to the AD in these regards.

We have carefully reviewed the available data, including the comments that have been submitted, and determined that air safety and the public interest require adopting the AD as proposed.

There are about 403 airplanes of the affected design in the worldwide fleet. This AD will affect about 129 airplanes of U.S. registry. The inspection will take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the inspection for U.S. operators is $8,385, or $65 per airplane.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. That NPRM was published in the Federal Register on February 15, 2005 (70 FR 7674). That NPRM proposed to require installing additional shielding of the hydraulic lines in the wing box area.

We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.

Since the NPRM was issued, Bombardier has revised Service Bulletin 601R-57-021. Revision ‘D,’ dated July 11, 2005, adds a procedure to cut the shield, changes the illustration, and incorporates minor editorial changes. The technical content remains otherwise unchanged from that in Revision ‘C.’ We have revised paragraphs (f) and (g) in this final rule to indicate that accomplishment of the actions specified in revision ‘B,’ ‘C,’ or ‘D’ of the service bulletin is acceptable for compliance with the requirements of this AD.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD, with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

The following table provides the estimated costs for U.S. operators to comply with this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with an AD to supersede AD 2000-02-13, amendment 39-11531 (65 FR 4095, January 26, 2000). The existing AD applies to all Bombardier Model DHC-8-101, -102, -103, -106, -201, -202, -301, -311, and -315 airplanes. The proposed AD was published in the Federal Register on March 30, 2005 (70 FR 16164), to continue to require installation of a placard on the instrument panel of the cockpit and eventual installation of an FAA-approved system to prevent positioning of the power levers below the flight idle stop. The proposed AD would also require operators who have incorporated a certain Bombardier service bulletin to perform repetitive operational checks of the beta lockout system and to revise the Airworthiness Limitations document.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment that has been submitted on the proposed AD. The commenter supports the proposed AD.

We have revised the applicability of the proposed AD to identify model designations as published in the most recent type certificate data sheet for the affected models.

We have carefully reviewed the available data, including the comment that has been submitted, and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

This AD affects about 185 Bombardier Model DHC-8-101, -102, -103, -106, -201, -202, -301, -311, and -315 airplanes of U.S. registry.

The installation of a placard that is required by AD 2000-02-13, and retained in this AD, requires about 1 work hour per airplane, at an average labor rate of $65 per work hour. No parts are required. Based on these figures, the cost impact of the placard installation on U.S. operators is estimated to be $12,025, or $65 per airplane.

The installation of the preventative system that is required by AD 2000-02-13, and retained in this AD, requires about 123 work hours per airplane, at an average labor rate of $65 per work hour. We estimate that required parts will cost approximately $12,000 per airplane. Based on these figures, the cost impact of the installation of the preventative system on U.S. operators is estimated to be $3,699,075, or $19,995 per airplane.

The operational check of the beta lockout system will take about 1 work hour per airplane, per check cycle, at an average labor rate of $65 per work hour. No parts are required. Based on these figures, the estimated cost of the new operational check specified in this AD for U.S. operators is $12,025, or $65 per airplane, per check cycle.

The revision of the Airworthiness Limitations document would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the revision specified in the AD for U.S. operators is $12,025, or $65 per airplane.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

What events have caused this AD? The FAA has received four reports (three in England and one in the United States) of wing attach shoulder bolt failure on Tiger Aircraft LLC (Type Certificate A16EA formerly held by American General Aircraft Corporation (AGAC) and Grumman American Aviation Corporation (GAAC)) Models AA-5, AA-5A, AA-5B, and AG-5B airplanes. Investigation reveals that excessive wing to center spar clearance could have contributed to the bolt failures; however, in each of the four instances, the bolts failed before reaching the service life of 7,250 hours time-in-service (TIS). The FAA has determined that, to assure the safety of these airplanes, the established service life of these bolts needed review. Our review of service life on Tiger Aircraft LLC (Type Certificate A16EA formerly held by AGAC and GAAC) Models AA-5, AA-5A, AA-5B, and AG-5B airplanes caused us to issue AD 95-19-15, Amendment 39-9377 (60 FR 48628, September 20, 1995). AD 95-19-15 currently requires the following on Tiger Aircraft LLC (Type Certificate A16EA formerly held by AGAC and GAAC) Models AA-5, AA-5A, AA-5B, and AG-5B airplanes, all serial numbers:

AD 95-19-15 was written to apply to all serial numbers of all models. A design change was made in this area beginning with serial number 10175 of the Model AG-5B airplanes. Therefore, FAA determined that the action should not apply to Model AG-5B airplanes with a serial number of 10175 or higher.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Tiger Aircraft LLC (Type Certificate A16EA formerly held by American General Aircraft Corporation and Grumman American Aviation Corporation) Models AA-5, AA-5A, AA-5B, and AG-5B airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on May 19, 2005 (70 FR 28854). The NPRM proposed to retain all the actions of AD 95-19-15 for all airplanes originally affected, but proposed to cut off the applicability for the Model AG-5B airplanes at serial number 10174.

Was the public invited to comment? We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment:

What is the commenter's concern? A letter from Tiger Aircraft LLC notes that the TCDS No. A16EH in the NPRM is referenced incorrectly. The TCDS should be No. A16EA.

What is FAA's response to the concern? We concur. We will correct all reference in the final rule of the TCDS to No. A16EA.

What is the commenter's concern? The commenter from Tiger Aircraft LLC requests that FAA change the contact information to that for Tiger Aircraft LLC. American General Aircraft Corporation is out of business.

What is FAA's response to the concern? The FAA concurs. We will change the contact information in the final rule to show Tiger Aircraft LLC.

What is FAA's final determination on this issue? We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for the changes discussed above and minor editorial corrections. We have determined that these changes and minor corrections:

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, the FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

How many airplanes does this AD impact? We estimate that this AD affects 3,700 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to do this inspection:

We have no way of determining the number of airplanes that may need this replacement of any damaged bolts or repair as a result of the inspection.

What authority does FAA have for issuing this rulemaking action? Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD.

Will this AD impact various entities? We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Will this AD involve a significant rule or regulatory action? For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “Docket No. FAA-2005-20968; Directorate Identifier 94-CE-15-AD” in your request.

The FAA published this direct final rule with a request for comments in the Federal Register on June 28, 2005 (70 FR 37029). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on October 27, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

Federal Register document 05-21707, published on Friday, July 29, 2005 (70 FR 43741), corrected the airport name and removed references to “effective dates and times established in advance by a Notice to Airmen” from the legal descriptions for Class C and Class E airspace at Lincoln, NE. However, changes to the Class C airspace were incorrectly included in the direct final rule; request for comments.

Framework 17 was adopted by the Council on February 1, 2005, and was submitted to NMFS by the Council on March 11, 2005, with a supplement submitted on April 4, 2005. A proposed rule for Framework 17 was published in the Federal Register on June 2, 2005 (70 FR 32282), with a comment period ending on June 17, 2005. The issues that led to the development of Framework 17 are discussed in detail in the preamble of the proposed rule, and are summarized briefly in this final rule. Framework 17 was developed by the Council to address concerns resulting from reports that vessels issued Atlantic scallop open access general category permits were making undocumented scallop landings and violating the 400-lb (181.44-kg)/50-bu (17.62-hL) possession limit restriction. In addition, the Council made a modification to the procedure that authorizes limited access scallop vessels to terminate Area Access trips prior to fully harvesting the allowed amount of scallops (the broken trip provision).

Framework 17 requires all general category vessels that land, or intend to land, more than 40 lb (18.14 kg) of shucked, or 5 bu (176.2 L) unshucked scallops, to install and operate a VMS onboard the vessel. The use of VMS is expected to assist with monitoring of general category vessel activity and facilitate the enforcement of the possession limit regulations. Because of the cost of installing and operating VMS, the requirement may also help distinguish the active fleet of general category vessels that target scallops from all of the currently permitted vessels, which number over 2,500. VMS will provide better data for fishery management, particularly to specifically identify areas that are more frequently targeted by small vessels fishing outside of the typical scallop fishing areas (e.g., inshore areas of the Gulf of Maine). Transmission of location information through VMS could also assist U.S. Coast Guard search and rescue operations by automatically tracking vessel position.

In order to administer and effectively enforce the new VMS requirement for general category vessels, this final rule establishes a new general category scallop permit designation, under NMFS's Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), section 305(d) authority. Framework 17 requires vessel owners requesting general category scallop permits to determine whether they will fish under the non-VMS general category vessel permit, which authorizes possession of 40 lb (18.14 kg) of shucked, or 5 bu (176.2 L) of unshucked scallops, or under the VMS general category vessel permit, which authorizes the possession of up to 400 lb (181.44 kg) of shucked or 50 bu (17.62 hL) of unshucked scallops. Owners who apply for the VMS general category vessel permit must submit a copy of the vendor installation receipt from a NMFS-approved VMS vendor with their permit application. Vessel owners who have not submitted proof of VMS installation, or who have not submitted a completed application for a VMS general category vessel permit by the effective date of this action will be issued a non-VMS general category vessel permit at that time. Vessel owners may change from one general scallop permit category to another within 45 days of the issuance of the new general category vessel permit.

This final rule also implements a VMS power-down provision to accommodate vessels that do not have continuous power sources at their docks or moorings. Many vessels in the general category fleet are moored or docked in locations that have limited electrical power. The power-down provision was established to address this issue, and it allows vessel operators to turn off their VMS units and notify NMFS once the vessel is in port, has offloaded its catch, and is tied to a permanent dock or mooring. Vessel operators must turn on their VMS units and log into the system before leaving the fixed dock or mooring for any purpose.

This final rule also removes the automatic days-at-sea (DAS) charge and possession limit reduction under the current regulatory provision for limited access scallop vessels that terminate scallop trips in the Area Access Program (the broken trip provision). Under the previous measure, such vessels could resume trips, but the possession limit for the compensation trip was reduced to discourage unnecessary broken trips. This final rule modifies the broken trip provision to allow vessels that break a scallop trip to fully harvest the remainder of their possession limit on a makeup trip. The measure is intended to provide added flexibility for vessel operators in determining if a trip should be terminated prior to catching the full possession limit. Some vessel owners and operators were concerned that the reduced flexibility of the prior measure compromised safety; this final rule should alleviate that concern. The new measure retroactively applies to all broken trips that began on or after March 1, 2005. NMFS will automatically restore all scallop poundage deducted under the prior regulations, and send notification to vessel owners authorizing the harvest of the restored poundage on a subsequent trip. Vessel owners may not harvest this restored poundage until they receive notification from NMFS. This restored poundage can be used on any authorized compensation trip into a specified Access Area, and may be combined with other compensation trips for that specific Access Area, as long as the overall possession limit is not exceeded. Restored poundage can be harvested at any time during the remainder of the fishing year that ends February 28, 2006, provided there are no seasonal restrictions pertaining to the specific Access Area.

NMFS received nine comment letters on the proposed rule for Framework 17 (70 FR 32282). Upon review, one comment was found to have no relation to the proposed measures and was not considered during the review of this action. The remaining eight commenters made comments specific to this action. Comments were submitted by the Maine Department of Marine Resources (MEDMR), Stonington Fisheries Alliance (SFA), Associated Fisheries of Maine (AFM), Fisheries Survival Fund (FSF), and five individuals. NMFS has considered all of the comments on the proposed measures, and has approved all of the measures in Framework 17. Responses to specific comments follow:

Comment 1: FSF and an individual support the VMS measures because in their view VMS will result in improved information about the performance of the general category fishery, and will improve the enforceability of the regulations for that sector of the fishery.

Response: NMFS agrees that the VMS will provide better information about vessel activities in this sector of the scallop fishery. Improved information about the fishery will improve management in several ways, including enforcement of the regulations. NMFS notes, however, that representatives of NOAA's Office of Law Enforcement (OLE) expressed concern at the Council meeting in February 2005 that exempting some general category vessels from the VMS requirement would complicate enforcement because it provides an opportunity for general category vessels to fish for and land scallops without using VMS. Despite OLE's concern, the Council concluded that it should exempt that portion of the fishery due to concern about the costs of the system purchase, installation and operation for vessels that make very low scallop landings. NMFS has approved the program as proposed by the Council rather than disapproving it completely because, even with the exemption, the provision improves enforceability of the general category fleet and addresses the need for better data concerning the fishing activity of the active vessels in the general category sector. If there are problems in effectively enforcing this rule, NMFS will urge the Council to modify this provision in a future action.

Comment 2: For several reasons, MEDMR, SFA, AFM, and four individuals oppose the imposition of the VMS requirement as proposed in Framework 17. Most of the specific information in their comments pertains to the fishery in Maine, which they state is composed of vessels that participate in several fisheries over the course of the year, and fish for scallops on a limited scale, usually inshore and usually during December-April. Additional specific points made by these commenters are outlined below, but they all express the same general concern that it is inappropriate to impose the VMS requirement and associated costs on Maine vessel owners given the relatively limited extent of their participation in the scallop fishery. MEDMR specifically notes concern that Framework 17 will require over 2,500 general category vessels to acquire a VMS system to monitor the actions of a few is excessive, especially when the vast majority have not landed significant amounts of scallops in recent years.

Phoenix Scientific, Inc., 3915 South 48th Street Ter., St. Joseph, MO 64503, filed a supplemental ANADA 200 124 that provides for veterinary prescription use of Flunixin Meglumine Injection intravenously in lactating dairy cattle for control of fever associated with bovine respiratory disease and endotoxemia, and for control of inflammation in endotoxemia. The supplemental ANADA is approved as of July 18, 2005, and the regulations are amended in 21 CFR 522.970 to reflect the approval. The basis of approval is discussed in the freedom of information summary.

In accordance with the freedom of information 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.

FDA 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.

This document contains temporary regulations that amend the Income Tax Regulations (26 CFR part 1) under section 408A of Code relating to Roth IRAs. Section 408A of the Code, which was added by section 302 of the Taxpayer Relief Act of 1997, Public Law 105-34 (111 Stat. 788), establishes the Roth IRA as a type of individual retirement plan, effective for taxable years beginning on or after January 1, 1998.

Under Code section 408A, a Roth IRA is treated like a traditional IRA with several significant exceptions. Like amounts held in traditional IRAs, amounts held in Roth IRAs generally are exempt from Federal income tax under Code section 408(e)(1). Likewise, contributions to traditional IRAs and Roth IRAs are subject to specific limitations.

The identifying characteristic of Roth IRAs is that all contributions are after-tax contributions, and qualified distributions are tax free. Thus, unlike certain contributions to traditional IRAs, which may be deductible, contributions to Roth IRAs cannot be deducted from gross income. Distributions from a traditional IRA are includible in gross income except to the extent attributable to a return of basis. However, qualified distributions from Roth IRAs are excludible from gross income. Under section 408A(d)(2), a qualified distribution from a Roth IRA is a distribution that is made: (1) At least 5 years after the account owner (or the account owner's spouse) made a Roth IRA contribution, and (2) after age 59 1/2 , after death, on account of disability, or for a first-time home purchase.

A taxpayer whose modified adjusted gross income for a year does not exceed $100,000 may convert an amount held in a non-Roth IRA ( i.e. , a traditional IRA or SIMPLE IRA) to an amount held in a Roth IRA. This conversion requires taking into income the value of the non-Roth IRA being converted (to the extent the conversion is not a conversion of basis in the non-Roth IRA), essentially converting the value into an after-tax rollover contribution to the Roth IRA. A conversion may be accomplished by means of a rollover, trustee-to-trustee transfer, or account redesignation.

Regardless of the means used to convert, any amount converted from a non-Roth IRA to a Roth IRA is treated as distributed from the non-Roth IRA and rolled over to the Roth IRA. The conversion amount is generally includible in gross income for the year of the conversion under section 408(d)(1) and (2). In the case of a conversion involving property, the conversion amount generally is the fair market value of the property on the date of distribution or the date the property is treated as distributed from the traditional IRA.

Final regulations regarding Roth IRAs were published in the Federal Register on February 4, 1999 (64 FR 5597). Section 1.408A-4 provides rules relating to converting amounts from a traditional IRA to a Roth IRA. Section 1.408A-4, A-7, which sets forth the tax consequences of converting an amount held in a traditional IRA to a Roth IRA, provides that any amount that is converted to a Roth IRA is includible in gross income as a distribution according to the rules of section 408(d)(1) and (2) for the taxable year in which the amount is distributed or transferred from the traditional IRA.

Under A-1 of § 1.408A-7, any amount converted from a non-Roth IRA to a Roth IRA is treated as a distribution for which a Form 1099-R, “Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRA, Insurance Contracts,” must be filed by the trustee maintaining the non-Roth IRA.

Before the enactment of section 408A, the need to value an annuity contract as a result of distribution from a qualified plan or IRA rarely arose. The distribution of an annuity contract from a qualified plan or a traditional IRA is generally not a taxable event because, in most cases, the distributed annuity account contract continues to be subject to requirements necessary for tax deferral, e.g. , the annuity remains subject to the minimum distribution requirements of section 401(a)(9). In such a case, no amount is includible in income until amounts are actually distributed from the annuity contract. However, in certain situations, the Code provides that the fair market value of an individual retirement annuity is treated as a taxable distribution. For example, under section 408(e), the fair market value of the annuity is included in taxable income if the annuity ceases to be an individual retirement annuity because of violations of requirements set forth under that subsection.

Section 25.2512-6 of the Gift Tax Regulations provides rules regarding the valuation of certain life insurance contracts for gift tax purposes. 1 Under these rules, the value of a life insurance contract or of a contract for the payment of an annuity issued by a company regularly engaged in the selling of contracts of that character is established through the sale of the particular contract by the company, or through the sale by the company of comparable contracts. In addition, § 25.2512-6 provides that, as the value of an insurance policy through sale of comparable contracts is not readily ascertainable when the gift is of a contract which has been in force for some time and on which further premium payments are to be made, the value may be approximated by adding to the interpolated terminal reserve at the date of the gift the proportionate part of the gross premium last paid before the date of the gift which covers the period extending beyond that date. If, however, because of the unusual nature of the contract, such approximation is not reasonably close to the full value, this method may not be used. Thus, this method may not be used to determine the fair market value of an insurance policy where the reserve does not reflect the value of all relevant features of the policy. These gift tax valuation rules also apply for purposes of commercial annuity contracts. See Examples 1 and 2 of § 25.2512-6. In addition, under § 20.2031-8 of the Estate Tax Regulations, the same rules govern the valuation of such life insurance and commercial annuity contracts for estate tax purposes. See §§ 20.2031-7(b) and 20.2039-1(c).

Under A-12 of § 1.401(a)(9)-6, an employee's entire interest under an annuity contract is the dollar amount credited to the employee or beneficiary under the contract plus the actuarial value of any additional benefits (such as survivor benefits in excess of the account balance) that will be provided under the contract. This rule requiring that the value of additional benefits under an annuity contract be included in the employee's entire interest, for purposes of determining the required minimum distribution under section 401(a)(9), is based on the general requirement that the fair market value of all assets must be reflected in valuing an account balance under a defined contribution plan. However, certain additional benefits may be disregarded for purposes of calculating the required minimum distribution, such as when there is a pro-rata reduction in additional benefits for a withdrawal and a guaranteed return of premiums upon death, to reflect the fact that distributions are being made to satisfy section 401(a)(9).

Rev. Proc. 2005-25 (2005-17 I.R.B. 962), provides safe harbor formulas that, if used to determine the value of a life insurance contract, retirement income contract, endowment contract, or other contract providing life insurance protection that is distributed or otherwise transferred from a qualified plan, will meet the definition of fair market value for purposes of applying the rules of section 402(a) (as well as sections 79, 83, and 402(b)).

These temporary regulations under section 408A clarify that, when a non-Roth individual retirement annuity is converted to a Roth IRA, the amount that is treated as distributed is the fair market value of the annuity contract on the date the annuity contract is converted. Similarly, when a non-Roth individual retirement account holds an annuity contract as an account asset and the account is converted to a Roth IRA, the amount that is treated as distributed with respect to the annuity contract is the fair market value of the annuity contract on the date the annuity contract is distributed or treated as distributed from the non-Roth IRA.

Some taxpayers and their advisers assert that the only amount includible in income as a distribution when a non-Roth individual retirement annuity is converted to a Roth IRA is the cash surrender value of the contract, even when the cash surrender value does not accurately reflect the fair market value of the contract. In particular, some advisers market a transaction in which taxpayers are encouraged to invest their non-Roth IRA funds in a single premium annuity contract with significant artificial penalties that apply in the first year (or years) of the contract if the annuity is surrendered, causing the annuity to have a low cash surrender value in the early years of the contract. Under this transaction, shortly after the annuity contract is purchased by the non-Roth IRA, the taxpayer converts the IRA to a Roth IRA. In such a case, the taxpayer asserts that the only amount includible in gross income as a result of the conversion is the low cash surrender value. This assertion is made even though the surrender penalties are unlikely to be paid because the taxpayers do not expect to surrender the contract during the early years. In this case, the taxpayers expect that the ultimate payments under the contract will be qualified distributions from the Roth IRA ( i.e. , tax-exempt), and thus, they also expect the artificially depressed cash surrender value to be the only amount ever includible in gross income.

In another situation, a taxpayer purchases a non-Roth individual retirement variable annuity with a guaranteed minimum death benefit equal to the highest account value ever attained under the contract, adjusted for withdrawals. If an amount is withdrawn from the contract, the death benefit is reduced dollar for dollar (rather than a pro-rata reduction) by the amount of the withdrawal. Prior to the date of conversion, the annuity has a death benefit far in excess of the account value and the taxpayer withdraws from the IRA annuity all but a minimum account value that will keep the IRA annuity in force. Because the withdrawal reduces the guaranteed minimum death benefit on a dollar-for-dollar basis, the remaining death benefit will be significantly greater than the current account value, and accordingly, the current account value will not reflect the fair market value of the contract. For example, suppose such an individual retirement variable annuity has a guaranteed minimum death benefit of $200,000 with an account value of $100,000. The taxpayer withdraws $99,000 leaving a $1,000 account value and a $101,000 death benefit ($200,000 less $99,000)). The taxpayer then converts the IRA annuity into a Roth IRA and takes the position that the $1,000 account value is the conversion amount even though the account value does not reflect the fair market value of the additional $100,000 that will be paid upon the taxpayer's death. In this case, the taxpayer expects that the entire benefit payment of $101,000 will be a qualified distribution from the Roth IRA ( i.e. , tax-exempt), and thus, expects that the $1,000 account value on the date of conversion will be the only amount ever includible in gross income.

The IRS and Treasury Department have concluded that cash surrender value is not always an appropriate measure of fair market value with respect to non-Roth IRA annuities that are converted to Roth IRA annuities. Rather than use the cash surrender value as the basis for determining fair market value, these temporary regulations follow the gift tax regulations in providing that the fair market value of an individual retirement annuity is established by the premiums paid for such annuity if the conversion occurs soon after the annuity was purchased.

Under the temporary regulations, if the conversion occurs after the annuity contract has been in force for some time and no further premium payments are to be made, fair market value is determined through the sale by the company of comparable contracts. The temporary regulations further provide that, if the conversion occurs after the annuity contract has been in force for some time and future premium payments are to be made, fair market value is determined through an approximation that is based on the interpolated terminal reserve at the date of the conversion, plus the proportionate part of the gross premium last paid before the date of the conversion which covers the period extending beyond that date. However, if, because of the unusual nature of the contract, this approximation is not reasonably close to the full value, this method may not be used.

These temporary regulations also provide authority for the Commissioner to issue additional guidance regarding the fair market value of an individual retirement annuity, including formulas to be used for determining fair market value. The IRS and Treasury Department expect to issue additional guidance regarding the rules to be used in determining the fair market value of a non-Roth IRA annuity. It is anticipated that such guidance will be similar to the provisions of Rev. Proc. 2005-25 (2005-17 I.R.B. 962, April 25, 2005), except that the adjustment for potential surrender charges, to the extent permitted, will not exceed 9 percent. It is also anticipated that such guidance will provide that in determining fair market value, the value of all additional benefits (such as guaranteed minimum death benefits) under the contract must be taken into account. The IRS and Treasury Department request comments regarding this anticipated guidance. The IRS and Treasury Department also request comments regarding whether the method used to calculate the fair market value of an annuity contract that is converted to a Roth IRA should also apply for purposes of the determining fair market value of an annuity contract under sections 408(e) and 401(a)(9). These comments may be submitted in conjunction with the comments submitted on the proposed regulations discussed below.

Proposed regulations regarding the determination of fair market value of an annuity contract are contained in the Proposed Rules section of the Federal Register . The preamble and text of these temporary regulations also serves as the preamble and text of the proposed regulations.

The temporary amendments to § 1.408A-4 of the regulations are applicable to any Roth IRA conversion where an annuity contract is distributed or treated as distributed from a traditional IRA on or after August 19, 2005. No implication is intended concerning whether or not a rule to be adopted in these regulations is applicable law for taxable years ending before that date.

It has been determined that these temporary regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these temporary regulations. For applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register . Pursuant to section 7805(f) of the Code, these temporary regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these temporary regulations is Cathy A. Vohs of the Office of the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and Treasury Department participated in the development of these regulations.

In rule FR Doc. 05-15495 published on August 9, 2005 (70 FR 46336), make the following corrections:

1. On page 46336, in the first column, under ADDRESSES , change the e-mail address from “comments@msha.gov” to “zzmsha-comments@dol.gov” .

2. On page 46337, in the third column, in the second full paragraph, in the second sentence, change the word “revised” to “existing”.

3. On page 46338, in the first column, in the first full paragraph, in the sixth sentence, change the term “part 5” to “part 15”.

On January 29, 2004, we published a notice of proposed rulemaking (NPRM) entitled “Security Zone; San Francisco Bay, Oakland Estuary, Alameda, CA” in the Federal Register (69 FR 4267) proposing to establish a security zone extending approximately 50 yards around the Coast Guard Island Pier in the navigable waters of the Oakland Estuary in Alameda, California. We received one letter commenting on the proposed rule. No public hearing was requested, and none was held. On June 7, 2004, we published a final rule (codified as 33 CFR 165.1190) entitled “Security Zone; San Francisco Bay, Oakland Estuary, Alameda, CA” in the Federal Register (69 FR 31737) that established a security zone extending approximately 50 yards around the Coast Guard Island Pier in the navigable waters of the Oakland Estuary in Alameda, California.

Since that time, the Coast Guard determined that a floating security barrier should also be installed to provide an added level of security for the Coast Guard Cutters that moor at the Coast Guard Island Pier. Because the navigational channel is less than 50 yards from the two ends of the Coast Guard Island Pier, and in order to provide approximately 50 yards of maneuvering space for the cutters along the entire length of the pier, the barrier needed to extend into the navigational channel approximately 10 to 20 yards at each end. Since the previously published security zone did not extend into the navigational channel, we published another NPRM entitled “Security Zone; San Francisco Bay, Oakland Estuary, Alameda, CA” in the Federal Register on May 9, 2005 (70 FR 24344) proposing to revise the perimeter of the existing security zone around the Coast Guard Island pier to mirror the perimeter of the floating security barrier. We received two comments on the proposed rule. No public hearing was requested, and none was held.

Vessels or persons violating this section are subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $32,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000) and in rem liability against the offending vessel. Any person who violates this section using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years.

The Captain of the Port will enforce this security zone and may enlist the aid and cooperation of any Federal, State, county, municipal, or private agency to assist in the enforcement of the regulation.

In its effort to thwart potential terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Espionage Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq. ) and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

In this particular rulemaking, the Coast Guard is revising the perimeter of the existing security zone around the Coast Guard Island pier to mirror the perimeter of the floating security barrier. The need for the security zone still exists due to heightened security concerns and the catastrophic impact a terrorist attack on a Coast Guard Cutter would have on the crew on board and surrounding government property.

This security zone is needed for national security reasons to protect Coast Guard Cutters, their crews, the public, transiting vessels, and adjacent waterfront facilities from potential subversive acts, accidents or other events of a similar nature. This rule prohibits the entry of any vessel or person inside the security zone without specific authorization from the Captain of the Port, or his designated representative. Due to heightened security concerns and the catastrophic impact a terrorist attack on one of these vessels would have, having a security zone around the Coast Guard Island Pier remains a prudent and necessary action.

We received two comments on the proposed rule. No public hearing was requested, and none was held. The first comment we received noted that the two geographical positions provided in the NPRM that were intended to be located on the shore of Coast Guard Island actually plotted slightly offshore from Coast Guard Island. The two positions have been corrected in this final rule. The second comment we received requested that we use yards as the unit of measurement to describe the security zone instead of feet in order to be consistent with other security zones in the San Francisco Bay Area. As a result, we have used yards as the unit of measurement to describe the security zone in this final rule. Because neither of these two changes have a substantive impact on the regulation, we feel that making these changes does not warrant an extension to the public comment period provided by the NPRM.

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

Although this rule restricts access to the waters encompassed by the security zone, the effects of this rule are not significant for the following reasons: (i) Vessel traffic is able to pass safely around the area, (ii) vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the security zone to engage in these activities, (iii) the perimeter of the security zone only extends 10 to 20 yards into the approximately 170-yard wide navigational channel, and (iv) this security zone is only slightly larger than the Coast Guard Island security zone that has been in place since July 7, 2004.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The small entities most likely to be affected are tug and barge companies transiting the Oakland Estuary. This regulation will not have a significant economic impact on these small entities for several reasons: (i) Vessel traffic is able to pass safely around the area, (ii) vessels engaged in commercial towing have ample space outside of the security zone to engage in towing activities, (iii) the perimeter of the security zone only extends approximately 10 to 20 yards into the approximately 170-yard wide navigational channel, and (iv) this security zone is only slightly larger than the Coast Guard Island security zone that has been in place since July 7, 2004. Small entities and the maritime public would be advised of this security zone via broadcast notice to mariners, and/or local notice to mariners.

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

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal Regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-800-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

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

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 because it establishes a security zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” (CED) are available in the docket where indicated under ADDRESSES .

On May 26, 2005, EPA proposed approval of North Carolina's December 21, 2004, SIP revisions demonstrating attainment and maintenance of the 8-hour ozone standard, 0.08 parts per million (ppm), in the North Carolina EAC Areas by December 31, 2007. 1 Additional information regarding the specific SIP revisions being approved today is available in the proposed rule (70 FR 30389, May 26, 2005) included in this Docket. The submitted revisions were necessary, pursuant to the April 30, 2004, designations of the North Carolina EAC Areas for the 8-hour ozone standard. The SIP revisions are consistent with the requirements established in the EAC Protocol and related regulations. For further information on the designation process and the North Carolina EAC designations, please see 69 FR 23858 (April 30, 2004). 2 EPA received public comments for thirty days on the SIP revisions being approved today. The comments will be discussed below in Part III., “Response to Comments.”

An EAC is an agreement between a state, local governments, and EPA to implement measures not necessarily required by the Clean Air Act (CAA) in order to achieve cleaner air as soon as possible. 3 Communities close to or exceeding the 8-hour ozone standard, that have elected to enter into an EAC, have started reducing air pollution at least two years sooner than required by the CAA. In many cases, these reductions will be achieved by local air pollution control measures not otherwise mandated under the CAA. In accordance with the EAC Protocol, North Carolina submitted an EAC for the Unifour area on December 19, 2002, the Fayetteville area on December 20, 2002, and the Triad and Mountain areas on December 23, 2002. The compacts themselves were signed by state air quality officials, representatives of the local communities, and the Regional Administrator for EPA Region 4. The EAC program was designed for areas that approached or monitored violations of the 8-hour ozone standard, but were in attainment for the 1-hour ozone national ambient air quality standard (the 1-hour ozone standard). The 1-hour ozone standard will be revoked for counties in EAC areas one year after the effective dates of their respective 8-hour ozone designations. 40 CFR 50.9(b).

As part of the EAC program, EPA deferred the effective date of the nonattainment designations for EAC areas that were violating the 8-hour ozone standard, but continue to meet the milestones described in the EAC Protocol. Details of this deferral were published in the Federal Register on April 30, 2004 (69 FR 23858). On June 8, 2005, EPA proposed to extend the deferred effective date of the nonattainment designation through December 31, 2006 (70 FR 33409), for EAC areas that have met their obligations. A subsequent action will continue the deferral until December 31, 2007, when attainment evaluations will begin. Pursuant to the EAC Protocol, the designation process is scheduled to be completed by April 15, 2008. To date, the North Carolina EAC Areas have met all EAC milestones. In April, 2008, it is anticipated that EAC areas with air quality monitoring data showing attainment for the years 2005-2007, that have also met all the compact milestones, will be designated attainment for the 8-hour ozone standard. EPA believes that early planning and implementation of control measures that improve air quality will likely accelerate protection of public health. The EAC program allows participating state and local entities to make decisions that will accelerate meeting the new 8-hour ozone standard using a mix of local, State, and Federal measures. All of the measures being adopted today as part of the SIP revisions will be mandatory and federally enforceable.

The details of the SIP revisions being approved today are available for review under RME ID No. R04-OAR-2004-NC-0005. In addition, the measures discussed in this paragraph are applied differently to different areas depending on the specific area's designation ( i.e. , unclassifiable/attainment or nonattainment-deferred). Generally, the SIP revisions include emissions inventory, modeling, control strategies, and maintenance for growth elements as required by the EAC Protocol. With regard to control measures, North Carolina's SIP revisions include Federal, State, and local control measures. The Federal control measures include, among others, Tier 2 vehicle standards and low sulfur fuel. The State of North Carolina's Clean Smokestack's Act (a recently enacted state law) is an example of a statewide control measure being approved as part of the SIP revisions. Other state control measures, such as expansion of the statewide vehicle inspection and maintenance program, and the NO X SIP Call Rule, are already part of the SIP. Implementation of the state measures will occur at a local level through county involvement in both implementation and enforcement. The local control measures include, among others, eliminating the use of coal-fired boilers during the ozone season at an RJ Reynolds facility in the Triad EAC area, truck stop electrification, and local ordinances regarding landscaping. All of these measures, including the local measures, will be enforceable once they are incorporated into the SIP.

In addition to control measures, the North Carolina SIP revisions also include a maintenance for growth plan that meets and exceeds the minimum requirements of the EAC Protocol for such a plan. The EAC Protocol requires that maintenance be demonstrated through 2012. In summary, the North Carolina plan demonstrates attainment until 2017, commits to a mid-point evaluation in 2012, and commits to develop a second 10-year maintenance plan from 2017-2027, among other elements.

The State of North Carolina used a process known as photochemical modeling to evaluate attainment and maintenance of the 8-hour ozone standard. Photochemical modeling performed by North Carolina used control measures to model attainment and maintenance of the 8-hour ozone standard through 2017, passing the attainment test for 2007, 2012, and 2017. Photochemical modeling is consistent with the EAC Protocol and the EPA Draft modeling guidance that was provided to EAC areas. 4 In summary, the North Carolina modeling was based upon base year emissions data from specific days in 1995, 1996, and 1997, with a “current” year of 2000. For further information on North Carolina's modeling, see RME ID No. R04-OAR-2004-NC-0005.

Today we are taking final action to approve revisions to the North Carolina SIP under sections 110 and 116 of the CAA, 42 U.S.C. 7410 and 7416. The SIP revisions are consistent with the EAC Protocol and related regulations. These revisions demonstrate attainment of the 8-hour ozone standard within the North Carolina EAC Areas by 2007, maintain it for five or more years beyond 2007, and incorporate the control measures developed by these EAC Areas into the North Carolina SIP.

EPA Region 4 received a number of comments in response to the May 26, 2005, proposal to approve the North Carolina EAC Area SIP revisions. The majority of the comments expressed support for the EAC process and the goal of clean air sooner. Several commenters further noted that the measures included in the SIP revisions demonstrate attainment of the ozone standard by December 31, 2007. These commenters supported EPA's proposal to approve the North Carolina EAC Area SIP revisions. EPA received one comment that raised concerns about EPA's proposal to approve the North Carolina EAC Area SIP revisions, although the issues raised by this commenter were not directly relevant to the May 26, 2005, proposal.

In the only unsupportive comment received, the commenter commended North Carolina for the steps it has taken to improve air quality, but noted opposition to today's action for two reasons. First, the SIP revisions provide for the deferment of a nonattainment designation until a future date potentially as late as December 31, 2007; second, the revisions relieve the area of obligations under Title I, Subpart D of the CAA. These two issues are directly related to the proposed deferral of the nonattainment designations for the North Carolina EAC Areas, published on June 8, 2005 (70 FR 33409), and not to today's approval of the actual SIP revisions. In addition, these issues were raised by the same commenter to EPA in response to the June 8, 2005, deferral proposal. Because this comment relates to deferral issues, and was also submitted in response to the proposed deferral, it will be responded to by EPA in our subsequent rulemaking addressing the deferred effective date for nonattainment designations for EAC areas. When published, this final deferral rule will be available on the EAC Web site http://www.epa.gov/air/eac/. Notably, contrary to the comment, today's action neither provides for deferral of the nonattainment designation nor relieves an area from obligations under Title I, Subpart D of the CAA.

EPA is approving the revisions to the North Carolina SIP submitted on December 21, 2004, pursuant to the EAC Protocol and resulting in emission reductions needed to attain and maintain the 8-hour ozone standard in the Mountain, Unifour, Triad and Fayetteville EAC Areas.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 21, 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 CAA section 307(b)(2).)

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

On May 23, 2005, EPA proposed approval of the San Antonio EAC area's Clean Air Plan (CAP), the photochemical modeling in support of the attainment demonstration and related control measures as revisions to the SIP submitted to EPA by the Texas Commission on Environmental Quality. 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 22, 2005. See the Technical Support Documents or our proposed rulemaking at 70 FR 29466 for more information. One adverse comment was received on EPA's proposed approval of the San Antonio EAC area's CAP and 8-hour ozone attainment demonstration for the EAC area.

Today we are approving revisions to the Texas SIP under sections 110 and 116 of the Act. The revisions demonstrate attainment of the 8-hour ozone standard within the San Antonio EAC area. The revisions include the San Antonio EAC CAP, photochemical modeling and related control measures. The intent of the SIP revisions is to reduce ozone pollution and thereby attain and maintain the 8-hour ozone standard.

We received one comment letter on the May 23, 2005 proposed rulemaking. The letter provided both supportive and adverse discourse, commending the State of Texas for steps it has taken to improve air quality. The commenter opposes approval of the SIP revision because it (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, Subpart 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 or 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 Texas and towards the efforts made to achieve and maintain the 8-hour ozone NAAQS. We continue to believe that the EAC program, as designed, gives San Antonio the flexibility to develop their own approach to meeting the 8-hour ozone standard and believe San Antonio is serious in their commitment to control emissions from local sources earlier than the Act would require. By involving diverse stakeholders, including representatives from industry, local and State governments, and local environmental and citizen groups, San Antonio is implementing regional cooperation in solving air quality problems that affect the health and welfare of its citizens. People living in the San Antonio EAC area will realize reductions in pollution levels and enjoy the health benefits of cleaner air sooner than might otherwise occur.

The commenter incorrectly asserts that the SIP revision provides for deferment of the effective date of the area's nonattainment designation. The SIP revision does not purport to alter the area's effective date of designation for the 8-hour standard. In the 8-hour designation rule published April 30, 2004, EPA designated 14 EAC areas as nonattainment, but deferred the effective date of the designation until September 30, 2005. While approval of the CAP is a prerequisite for an extension of the deferred effective date for the San Antonio EAC, 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 proposed rule, EPA proposed to extend to December 31, 2006, the deferral of the effective date for all 14 EAC areas that received deferrals to September 30, 2005 in the April 2004 designation rules. In a separate notice, EPA will consider comments regarding its legal authority to issue such deferrals in the final rulemaking action on the deferral. Additionally, we note that the requirements of part D of title I of the CAA are triggered when an area has an effective 8-hour ozone nonattainment designation. EPA's approval of the CAP for San Antonio does not affect whether the requirements of part D apply in the San Antonio area. Rather, it is EPA's separate actions regarding the effective date of the area's designation that affects whether and when the nonattainment provisions of part D might apply.

EPA is approving the attainment demonstration, the San Antonio EAC CAP, and the related control measures and incorporating these revisions into the Texas SIP as a strengthening of the SIP. We have determined that the CAP control measures included in the attainment demonstration are quantified, surplus, permanent, and will be Federally enforceable SIP revisions. The modeling of ozone and ozone precursor emissions from sources in the San Antonio EAC area demonstrate 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. We have reviewed the CAP and the attainment 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). 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 21, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

On May 12, 2005, EPA proposed approval of the Shreveport-Bossier City EAC area's Air Quality Improvement Plan (AQIP), the photochemical modeling in support of the attainment and maintenance demonstration and related control measures as revisions to the SIP submitted to EPA by the State of Louisiana. The photochemical modeling predicts that the 8-hour ozone standard should continue to be attained through December 31, 2007 and maintained through 2012. 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 13, 2005. See the Technical Support Document or our proposed rulemaking at 70 FR 25000 for more information. Two comment letters were received on EPA's proposed approval of the Shreveport-Bossier City EAC area's AQIP and 8-hour ozone attainment demonstration for the EAC area.

Today we are approving revisions to the Louisiana SIP under sections 110 and 116 of the Act. The revisions demonstrate continued attainment and maintenance of the 8-hour ozone standard within the Shreveport-Bossier City EAC area. The revisions include the Shreveport-Bossier City EAC AQIP, 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 12, 2005 proposed rulemaking for Shreveport-Bossier City. The comments provided both supportive and adverse discourse.

Comment: One letter supports EPA's approval of the EAC SIP revisions and one letter commends the State of Louisiana for steps it has taken to improve air quality.

Response: We appreciate the support expressed towards the State of Louisiana and towards the efforts made to ensure that the citizens in the Shreveport-Bossier City EAC area continue to breathe clean air. We continue to believe that the EAC program, as designed, gives the Shreveport-Bossier City area the flexibility to develop their own approach to maintaining the 8-hour ozone standard and believe the Shreveport-Bossier City area 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, the Shreveport-Bossier City area is implementing regional cooperation in solving air quality problems that affect the health and welfare of its citizens. Through implementation of the AQIP, people living in the Shreveport-Bossier City area will realize reductions in pollution levels and enjoy the health benefits of cleaner air sooner than might otherwise occur.

Comment: One letter opposes approval of the SIP revision. The letter contends that, should the area experience a violation of the 8-hour ozone 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, Subpart D of the Act. The letter further 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: In the April 2004 designation rule (69 FR 23858), the Shreveport-Bossier City EAC area was designated as attainment for the 8-hour ozone NAAQS. The commenter incorrectly asserts that approval of 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 Shreveport-Bossier City 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 Shreveport-Bossier City 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. Finally, approval of this SIP does not relieve the Shreveport-Bossier City EAC area of the requirements of Part D of Title I of the Act. These provisions apply to areas designated nonattainment. Because the Shreveport-Bossier City EAC area is designated attainment for the 8-hour ozone NAAQS, these provisions do not apply in the Shreveport-Bossier City EAC area.

EPA is approving the attainment and maintenance demonstration, the Shreveport-Bossier City EAC AQIP, and the related control measures and incorporating these revisions into the Louisiana SIP. We have determined that the control measures included in the attainment demonstration are quantified, surplus, permanent, and are Federally enforceable once approved into the SIP. The modeling of ozone and ozone precursor emissions from sources in the Shreveport-Bossier City EAC area demonstrate that the specified control strategies will provide for continued attainment of the 8-hour ozone NAAQS by December 31, 2007 and maintenance of that standard through 2012. We have reviewed the AQIP 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). 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 21, 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).)

Section 6101.36 is amended to conform to procedures required by the Department of the Treasury in processing awards for payment from the Judgment Fund. The Contract Disputes Act of 1978, 41 U.S.C. 612, provides that a monetary award to a contractor from a Board of Contract Appeals shall be paid promptly from the Judgment Fund. The Department of the Treasury's Financial Management Service (FMS), through the Treasury Financial Manual, volume I, part 6, chapter 3100, requires that the Government agency “responsible for defending the United States” in litigation or “authorized to settle the claim” in administrative actions submit completed copies of specified forms to FMS in order to process payment of monetary awards from the Judgment Fund. These requirements have superseded the procedures contained in section 6101.36, and the revised section 6101.36 reflects these requirements. This revision only affects paragraphs (c) and (d) of section 6101.36.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The General Services Administration certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because the rule does not impose any additional costs on either small or large businesses.

The Paperwork Reduction Act does not apply because the changes do not impose recordkeeping or information collection requirements, or otherwise collect information from offerors, contractors, or members of the public that require approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

In response to a petition for rulemaking, NHTSA published a notice of proposed rulemaking  1 on June 3, 2004, which proposed to amend FMVSS No. 209, Seat Belt Assemblies, by redefining the requirements and establishing a new test methodology for emergency-locking retractors (ELRs). As noted above, the NPRM proposed to establish a new acceleration-time (A-T) corridor, to add a figure illustrating the new A-T corridor, to provide a tolerance on angle measurements, and to adopt the same instrumentation specifications currently found in other FMVSSs containing crash tests. The purpose of these proposed amendments was to clarify the test procedures for ELRs, while ensuring that those devices continue to perform their important safety function of locking up a seat belt in the event of a crash or emergency braking.

After careful consideration of all available information, including public comments, the agency has decided to retain in this final rule the approach set forth in the NPRM, with minor technical modifications. All such modifications and the accompanying rationale are discussed fully in the balance of this document. The following points highlight the key changes to FMVSS No. 209 resulting from the final rule.

• The final rule modifies that portion of FMVSS No. 209's test procedures relevant to ELRs by adopting a new Figure 8, which provides a specified acceleration-time corridor for test pulses. The A-T corridor includes an upper boundary onset rate of 375 g/sec and permits acceleration to peak at up to 0.8 g. The lower boundary of the A-T corridor allows for a minimum onset rate of 21.67 g/sec. The steady-state tolerance range is from 0.65 g to 0.72 g.

• During dynamic testing, the final rule requires each acceleration pulse to be recorded using an accelerometer having a full scale range of ±10 g and to be processed according to the practices set forth in Society of Automotive Engineers (SAE) Recommended Practice J211-1 rev. December 2003, “Instrumentation for Impact Test—Part 1—Electronic Instrumentation,” Channel Frequency Class 60. (That SAE standard has been incorporated by reference into FMVSS No. 209.) Webbing displacement is required to be measured using a displacement transducer.

• Unless a range of angles is specified or a tolerance is otherwise explicitly provided, the final rule states that all angles and orientations of seat belt assemblies and components specified in the standard shall have a tolerance of ±3 degrees.

Manufacturers of seat belt assemblies must comply with the requirements of the final rule commencing on February 22, 2007. Voluntary compliance is permitted prior to the mandatory compliance date.

In terms of the impacts, the agency anticipates that this final rule will not result in substantial changes to the performance of ELRs and that current ELRs will continue to comply with FMVSS No. 209 without change. Instead, the final rule clarifies the specifications in the standard's test procedures. Furthermore, we expect that this rule will result in only a minimal cost burden to vehicle manufacturers. Testing laboratories might need to purchase new equipment, but this one-time cost is likewise expected to be minimal on a cost-per-vehicle basis.

The seat belt emergency-locking retractor is a device that was first developed in the 1960's for the purpose of maintaining occupant position during rapid vehicle deceleration. Since its inception, the ELR's locking sensitivity has been an important issue because of the need to assure that the retractor would lock very early during a collision or emergency braking, but not be so sensitive as to cause “nuisance” locking during routine driving.

Based upon the limited knowledge and technology available at that time, the SAE Motor Vehicle Seat Belt Committee (MVSBC) developed Recommended Practice SAE J-4b, Motor Vehicle Seat Belt Assemblies , and subsequently, SAE J-4c, Motor Vehicle Seat Belt Assemblies . These Recommended Practices provided performance requirements, laboratory test procedures, and minimal design requirements for seat belt assemblies for use in motor vehicles, in order to minimize the risk of bodily harm in an impact. In promulgating FMVSS No. 209, NHTSA ultimately adopted SAE J-4c, although the test methodologies for ELRs developed by SAE were not clearly defined. As a result, the test methodology, instrumentation, and measurements for assessing conformance were not explicitly described in S4.3(j) and S5.2(j) of FMVSS No. 209. This situation has not changed appreciably since adoption of our safety standard in a final rule published in the Federal Register on February 3, 1967. 2

Currently, there are two modes of ELR sensors in production: (1) webbing withdrawal-sensitive ELRs and (2) vehicle acceleration-sensitive ELRs. The latter mode of a retractor responds directly to a 0.7 g acceleration pulse, and lock-up usually occurs within a short period of time. The former mode of a retractor responds to the webbing withdrawal speed, which slowly builds up from zero to the threshold ( i.e. , lock-up) speed, when the assembly is subjected to the 0.7 g acceleration pulse. As a result, a longer time period may be required for the webbing-sensitive type of retractor to respond.

Despite the two different basic ELR designs, FMVSS No. 209 has a unified set of requirements for compliance testing. Specifically, under S4.3(j)(1) of FMVSS No. 209, an emergency-locking retractor of a Type 1 or Type 2 seat belt assembly, 3 when tested in accordance with S5.2(j), “shall lock before the webbing extends 25 mm when the retractor is subject to an acceleration of 7 m/s 2 (0.7 g).” Paragraph S5.2(j) of the standard states in relevant part that “[t]he retractor shall be subject to an acceleration of 7 m/s 2 (0.7 g) within a period of 50 milliseconds (ms), while the webbing is at 75 percent extension[.]”

In addition, FMVSS No. 209 establishes a sensitivity threshold for ELRs to prevent “nuisance” locking during routine driving. Under S4.3(j)(2), an ELR sensitive to vehicle acceleration must not lock up when the retractor is rotated in any direction to any angle 15 degrees or less. Under S4.3(j)(3), an ELR sensitive to webbing withdrawal must not lock up before the webbing extends 51 millimeters (mm) when the retractor is subject to an acceleration of 0.3 g or less.

Based upon FMVSS No. 209, the agency developed a laboratory test procedure for its compliance laboratories to follow, which provides more detail concerning test set up. The most recent version, TP-209-05, 4 was issued on January 17, 2003. In relevant part, that laboratory test procedure specifies the use of a 0.72 g acceleration pulse, which is intended to ensure that the retractor will be subject to at least 0.7 g during testing, as required by the standard. This test pulse accounts for calibration and accuracy ranges of the test equipment.

In order to gain a better understanding of the seat belt emergency-locking retractor test procedures and performance requirements, the Automotive Occupant Restraints Council (AORC  5 ) wrote a letter to NHTSA requesting an interpretation of S4.3(j) and S5.2(j) of FMVSS No. 209. The AORC stated that neither the SAE Committee nor NHTSA addressed the onset rate range and the deceleration tolerance for ELRs when their respective standards were developed or since that time. The AORC stated its belief that the intent of both the SAE Committee and NHTSA at the time FMVSS No. 209 was adopted was to mimic a hard braking deceleration pulse in which the 0.7 g level should be achieved with a sharp onset rate, followed by steady-state deceleration. NHTSA responded through an interpretation letter to Mr. Steven Fredin dated February 4, 2000. 6 However, the AORC did not agree with the position expressed in the interpretation letter and subsequently submitted a petition for rulemaking on June 2, 2000. 7

The AORC petition requested that NHTSA amend paragraphs S4.3(j) and S5.2(j) of FMVSS No. 209 to specify: (A) a rate of onset;  8 (B) an acceleration pulse duration; (C) an acceleration tolerance level, and (D) a subsequent acceleration decay. 9 In addition, the AORC requested that NHTSA apply the same instrumentation specifications to those provisions as are used in other FMVSSs with dynamic performance requirements.

The AORC argued that it is necessary to amend the standard because many acceleration pulses conform to S4.3(j) and S5.2(j) in theory, but those pulses would cause retractors, currently compliant under FMVSS No. 209, to fail the locking requirements within the 25 mm webbing payout. Furthermore, the AORC asserted that NHTSA's interpretation letter permits testing methodologies that no known ELR could possibly meet. The petition provided several example pulses that, according to the AORC, would conform to the criteria in the interpretation letter, but would not be sufficient to consistently lock a production retractor.

In suggesting a means of addressing these concerns, the AORC petitioned that S5.2(j) should include a specific A-T corridor, with maximum and minimum acceleration onset rates matching those specified in the Economic Commission for Europe Regulation No. 16, Uniform Provisions Concerning the Approval of: Safety Belts and Restraint Systems for Occupants of Power-Driven Vehicles and Vehicles Equipped with Safety Belts (ECE R16). The AORC also stated that the acceleration and the webbing displacement recording techniques should conform to SAE Recommended Practice J211-1 rev. March 1995, “Instrumentation for Impact Test—Part 1—Electronic Instrumentation” (SAE J211-1, rev. Mar. 1995). In addition, the AORC petition stated that the safety standard should require that the signals should be filtered with an SAE Class 60 filter, and that the accelerometer should be an instrumentation-grade, high-accuracy, ±10 g device. The AORC contended that the addition of an A-T corridor and specification of the test methodology and instrumentation, in a manner consistent with its petition, would create needed objectivity and fully clarify the standard in this area.

NHTSA granted the AORC's petition to clarify the relevant provisions of FMVSS No. 209.

As noted above, on June 3, 2004, NHTSA published an NPRM, which proposed to address the issues raised by the AORC in its petition for rulemaking. The NPRM provided a 60-day public comment period, which was subsequently extended. 10 In general, the NPRM proposed to redefine certain requirements of FMVSS No. 209 to establish a new test methodology for emergency-locking retractors. To accommodate the time needed for vehicle manufacturers and testing laboratories to reconfigure their testing equipment in conformity with the proposed amendments, NHTSA proposed that the final rule would provide lead time of one year. The following discussion highlights the key provisions of the proposal.

The agency proposed a new acceleration corridor with an increased maximum onset rate, which represents a modified version of the A-T corridor suggested by the AORC in its petition. The proposed corridor was sufficiently wide as to allow a range of onset rates to be tested that were preliminarily determined to be more representative of real world crashes and emergency braking events. The NPRM proposed a maximum onset rate of 375 g/sec and a minimum onset rate of 16.25 g/sec, which would accommodate purely linear pulses during the first 50 ms interval.

Although the agency found that the onset rate for various crash test pulses varied greatly (from over 1,000 g/sec for crash pulses to 2 g/sec for emergency braking pulses), the agency tentatively decided that its proposed maximum onset rate would capture pulses that historically have been used for ensuring a minimum level of safety performance for the ELR in vehicle seat belts along with a wide range of acceleration pulses (including those used by the agency's compliance testing laboratories). As a result, the agency tentatively concluded that the proposed A-T corridor would permit the generation of repeatable and reproducible acceleration pulses and that the proposed onset rate corridor should eliminate the potentially problematic “theoretical” test pulses cited by the AORC, while at the same time maintaining the integrity of FMVSS No. 209.

The NPRM did not propose a minimum time duration for the test pulse, as had been requested by the AORC in its petition. The agency reasoned that once the onset rate of the acceleration pulse is given, the pulse duration that is required to produce a 25 mm webbing payout is implicitly determined. Therefore, a pulse time duration specification is not necessary.

Based upon current compliance test data, the agency proposed that an initial peak above 0.7 g should be allowed within the first 50 ms time period of the test pulse. The proposed A-T corridor would have an upper bound of 0.8 g from 2 ms to 50 ms to allow the initial peak to exceed 0.7 g prior to reaching a “steady-state” response. For the remainder of the A-T corridor ( i.e. , from 50 ms to the end of the test), the A-T corridor would be specified at 0.7 g with a +0.02/-0.05 g tolerance boundary ( i.e. , a tolerance range between 0.72 g and 0.65 g), which is consistent with NHTSA's current compliance test procedures and test data. As discussed in the NPRM, the agency expected that the proposed A-T corridor would simulate the worst-case test condition, similar to those observed in laboratory hard (emergency) braking tests, while recognizing that acceleration may peak before reaching a “steady-state” condition.

In the NPRM, the agency stated that the proposal addresses the AORC's concerns about rapid acceleration decay after the initial peak, even though we did not include a specification for acceleration decay ( i.e. , pulse shape and duration). The NPRM stated that the lower boundary of the proposed A-T corridor would prevent the use of acceleration pulses that have early, rapid acceleration decay. Furthermore, after either a lock-up occurs or the webbing payout reaches 25 mm, the test is officially over. The acceleration pulse after this point does not affect the test results and is no longer a concern to test accuracy ( i.e. , after this point, it is permissible for the pulse to cross the lower boundary of the corridor).

In agreement with the AORC petition, the NPRM proposed that the acceleration specifications under FMVSS No. 209 be recorded and processed according to the practices specified in SAE J211-1, rev. March 1995. Specifically, the proposal stated that the instrumentation used to record the A-T history and the webbing payout would be in conformance with the instrumentation requirements of SAE J211-1, rev. March 1995, that the electronic signals would be filtered with an SAE Class 60 filter, and that the accelerometer used for retractor testing would be an instrumentation-grade, high-accuracy, ±10 g device. The proposed instrumentation requirements were the same as those currently specified in other FMVSSs with a dynamic performance component.

As part of the proposed test procedures, the NPRM specified use of a displacement transducer to directly measure and record webbing displacement, thereby eliminating the uncertainty inherent in indirect measurement techniques ( e.g. , numerical integration of accelerometer data). In addition, the NPRM's proposed test procedures included a tolerance of ±3 degrees for all angles and orientations of the seat belt assemblies and component, unless a range of angles is otherwise specified.

In order to address the issue of “nuisance locking,” the NPRM proposed to amend S4.3(j)(2) of FMVSS No. 209's test procedures to require retractors sensitive to webbing withdrawal to be subjected to an acceleration of 0.3 g occurring within a period of the first 50 ms and sustaining an acceleration no greater than 0.3 g throughout the test, while the webbing is at 75 percent extension.

In addition to the matters discussed above, the NPRM requested responses to several questions regarding the ability of current ELRs to comply with the proposed A-T corridor, methods used by the industry to determine when ELR lock-up occurs, and potential modifications to the proposal ( e.g. , narrowing the A-T corridor).

NHTSA received six comments on the June 3, 2004 NPRM from a variety of interested parties including an industry association (the AORC), suppliers (Renfroe Engineering, Inc.; TK Holdings, Inc.), a vehicle manufacturer (Ford Motor Company (Ford)), a public interest group (Public Citizen), and an individual (Dr. Ave Ziv). All of these comments may be found in Docket No. NHTSA-2004-17980.

The commenters generally supported the proposal but suggested a number of modifications to the proposed requirements, including ones related to the A-T corridor, the data acquisition methodology and related equipment, tolerances, requirements for dual-sensing retractors, and lead time. The following discussion summarizes the main issues raised by these public comments and the positions expressed on these topics. A more complete discussion of the public comments is provided under Section IV.C, which provides an explanation of the agency rationale for the requirements of the final rule and addresses related public comments by issue.

At least one commenter acknowledged that existing ELRs would continue to comply with FMVSS No. 209 if the proposed A-T corridor were to be adopted, although another commenter (Ford) argued that the corridor is overly broad and, therefore, not objective. Overall, however, commenters recommended adoption of the A-T corridor with certain modifications. For example, one commenter recommended redefining the lower corridor, because of concerns that a lower onset rate could result in nuisance locking, and providing a longer locking distance. In terms of the upper portion of the corridor, at least one commenter supported the proposed upper boundary; however, another commenter argued that the high maximum onset rate is unrealistic in light of the more limited capabilities of existing test equipment, and it recommended a new upper corridor with a maximum onset rate of 150 g/sec.

One commenter sought modifications to the range of the A-T corridor after 50 ms, such that 0.7 g is at the center of the upper and lower limits of the corridor. Commenters generally agreed with the proposal to allow acceleration decay outside of the proposed corridor after the compliance test is completed.

There were several comments pertaining to the proposed data acquisition requirements, including the following points. There was support for the use of an SAE Class 60 filter. Commenters also supported use of SAE Recommended Practice J211-1, although there was a recommendation to use a more recent December 2003 version of that standard, which provides a more detailed test methodology. One commenter recommended use of a ±20 g accelerometer, rather than the ±10 g accelerometer proposed in the NPRM.

Regarding the angle tolerances of ±3 degrees proposed in the NPRM, commenters generally supported such a tolerance for most applications, unless a range is specified. However, commenters requested a tighter tolerance of ±0.5 degrees for angles and orientations specifically addressed in the proposal, in order to prevent the need to redesign currently compliant ELRs to account for such tolerance.

Commenters also raised some issues not covered by the NPRM, such as requiring a seat belt assembly with dual-sensing retractors to comply with the standard for both designs, including the no-lock test at low accelerations. Another commenter requested specification of a defined A-T corridor for the no-lock requirement for accelerations no greater than 0.3 g.

Regarding lead time, commenters that addressed this issue requested that lead time be extended to 18 months, from the 12 months proposed in the NPRM, in order to provide companies with additional time to purchase and install new equipment, if necessary, to ensure compliance with the amended standard.

After careful consideration of the public comments, in this final rule amending FMVSS No. 209, we are adopting the approach set forth in the June 2004 NPRM, with certain modifications. In general, this rule redefines the requirements and establishes a new test methodology for emergency-locking retractors. The standard is intended to be technology-neutral, so as to permit compliance with any available ELR technology that meets the standard's performance requirements.

The following points highlight the key change resulting from the final rule.

• The final rule modifies that portion of FMVSS No. 209's test procedures relevant to ELRs by adopting a new Figure 8 which provides a specified acceleration-time corridor for test pulses. The A-T corridor includes an upper boundary onset rate of 375 g/sec and permits acceleration to peak at up to 0.8 g. The lower boundary of the A-T corridor allows for a minimum onset rate of 21.67 g/sec. The steady-state tolerance range is from 0.65 g to 0.72 g.

• During dynamic testing, the final rule requires each acceleration pulse to be recorded using an accelerometer having a full scale range of ±10 g and to be processed according to the practices set forth in SAE Recommended Practice J211-1 rev. December 2003, “Instrumentation for Impact Test—Part 1—Electronic Instrumentation,” Channel Frequency Class 60. (That SAE standard has been incorporated by reference into FMVSS No. 209.) Webbing displacement is required to be measured using a displacement transducer.

• Unless a range of angles is specified or a tolerance is otherwise explicitly provided, the final rule states that all angles and orientations of seat belt assemblies and components specified in the standard shall have a tolerance of ±3 degrees.

Consistent with the request of commenters, the agency has decided to provide 18 months of lead time for manufacturers to meet the requirements of the amended standard. Accordingly, compliance with the requirements of the final rule commences for seat belt assemblies manufactured on or after February 22, 2007. Voluntary compliance is permitted prior to the mandatory compliance date.

As noted previously, public comments on the June 2004 NPRM to amend FMVSS No. 209 raised a variety of issues with the NPRM's proposed requirements. Each of these topics will be discussed in turn, in order to explain how these comments impacted the agency's determinations in terms of setting requirements for this final rule.

The NPRM proposed an A-T corridor with a maximum onset rate of 375 g/sec, a minimum onset rate of 16.25 g/sec, and a width sufficient to accommodate acceleration test pulses preliminarily determined to be representative of real world crashes and emergency braking events. The proposal also provided an acceleration tolerance that would permit the pulse to attain an upper bound peak of 0.8 g within the first 48 ms corridor ( i.e. , between 2 ms and 50 ms) prior to reaching a steady-state response. For the remainder of the A-T corridor, the NPRM proposed 0.7 g with a +0.02/−0.05 tolerance boundary. ( See Figure 8 of the NPRM.) The agency did not deem it necessary to specify a minimum time duration for the acceleration pulse or a specification for acceleration decay ( i.e. , pulse shape and duration).

A number of commenters raised concerns about the proposed A-T corridor, including the AORC, TK Holdings, Ford, and Dr. Ziv. The AORC commented that the NPRM's expansion of the A-T corridor beyond the boundaries originally recommended in its petition for rulemaking is unnecessary. Specifically, the AORC objected to the NPRM's proposed lower onset rate, because the AORC believes that static friction in the ELR, coupled with the low onset rate, could result in nuisance locking during routine driving. To address its concern, the AORC developed a new lower A-T corridor as part of its comment submission, which reflects a compromise between the AORC's original suggested boundary and the one proposed in the NPRM. (TK Holdings supported such a compromise approach in its comments.)

The AORC further commented that if a lower onset rate were to be adopted, a longer locking distance would be required. To illustrate its point, the AORC argued that with an onset rate of 13 g/sec, the ELR would have 21.5 mm of payout available to lock up once it reached 0.7 g, as compared to 25 mm of payout being available for an ELR experiencing a nearly instantaneous rise to 0.7 g.

Regarding the upper boundary of the proposed A-T corridor, commenters expressed divergent viewpoints. TK Holdings concurred with the upper boundary presented in the NPRM. However, the AORC objected to the high onset rate ( i.e. , 375 g/sec). Although the AORC acknowledged that high onset rates do occur during high-speed barrier crashes, it argued that these tests serve the purpose of demonstrating performance under these conditions, so no component-level test is necessary. In addition, the AORC argued that it does not know of any commercially-available, component-level test equipment that can reliably conduct a test with an onset rate above 200 g/sec. As an alternative, the AORC developed and submitted a new upper corridor, which: (1) Adopts the agency's upper corridor limit of 0.8 g; (2) modifies the limit along the “sustain” portion at the end of the test to 0.75 g ( i.e. , the portion of the A-T corridor in which the steady-state response should have been achieved), and (3) provides a maximum onset rate of 150 g/sec.

TK Holdings expressed concern about the range of the corridor after 50 ms, arguing that the boundary should be controlled such that 0.7 g is at the center of the upper and lower limit of the corridor. Accordingly, TK Holdings recommended a range of 0.7 g ±0.05 g for the corridor after 50 ms.

The AORC and TK Holdings agreed with the agency's proposal to allow acceleration decay outside the proposed corridor after the compliance test is complete.

Ford commented that the NPRM's proposed A-T corridor is not objective because it is overly broad and that other concerns about test objectivity have not been adequately addressed. For example, Ford expressed concern that an agency contracting laboratory could choose an audit test pulse that is substantially different from the pulse selected by the manufacturer. The company requested that the agency demonstrate a safety need for test pulses that are both more severe and less severe than those within the A-T corridor originally recommended by the AORC. Ford stated that if the agency does identify a safety need for the augmented regions of the A-T plot, that there should be additional, objectively-defined corridors to assess ELR compliance.

In his comments, Dr. Ziv sought clarification as to whether a retractor must meet the requirements for any acceleration pulse within the proposed corridor, or at least one acceleration pulse within the corridor.

In response to these comments, the agency has decided to modify the lower boundary of the A-T corridor in the manner suggested by the AORC in its latest submission. NHTSA's intention in proposing the lower boundary in the NPRM was to ensure that it encompassed current test pulses, particularly those with slower onset rates. Although the AORC did not provide any data to demonstrate the nature and extent of this “nuisance locking” problem, we believe that the AORC's proposed new lower boundary would address the concern of potential “nuisance locking,” while maintaining inclusion of all current test pulses. In addition, we believe that the new lower A-T corridor should minimize the variation in onset rates, while maintaining the repeatability and reproducibility of the test procedures.

Regarding comments on the upper corridor boundary, the agency has decided to adopt, as part of this final rule, the same upper corridor boundary that was presented in the NPRM. High onset rates do occur in crashes, and even though current equipment cannot generate pulses of that magnitude, technological developments may permit generation of such pulses in the future. The agency believes that a high onset rate limit is not detrimental to current ELR performance or vehicle safety. Instead, we believe that it is advantageous for manufacturers to reach 0.7 g in the shortest time period possible, because that would make the maximum amount of webbing payout available to achieve compliance. In addition, we believe that the specificity in the final rule's data acquisition methodology (discussed below) will prevent the generation of unreliable test pulses with overly-high onset rates.

Although the maximum onset rate recommended by the AORC would (barely) encompass current test pulses, we do not believe that the AORC has demonstrated a need for its recommended change. In addition, the AORC did not provide evidence to demonstrate a compliance problem with its test pulses to meet a steady-state tolerance between 0.65 g and 0.72 g, as would justify its request to change the upper limit on the “sustain” portion of the boundary to 0.75 g; all test pulses included in the AORC's comments fell within the proposed tolerance, and the pulses generated by the agency during compliance testing similarly fell within that range.

In response to the AORC's comment regarding adoption of a longer locking distance, we have decided that such an amendment is not necessary for this new lower corridor. We believe that the test pulses, arising under the final rule, would provide sufficient onset rates to adequately permit enough webbing payout to comply with the standard.

We do not agree with Ford's opinion that the proposed A-T is overly broad and, therefore, not objective. NHTSA did not have an issue with performance of the existing test pulses used for compliance purposes. We found that those acceleration pulses have proven repeatable, reproducible, and indicative of pulse experience in the real world. The proposed A-T corridor was developed to ensure inclusion of these pulses, and in contrast to Ford's characterization, the proposed A-T corridor actually narrows the range of potential test pulses and addresses potential problems arising from the need to certify to theoretical pulses that might not exist in real world events. We believe that the proposed test corridor (further narrowed in the final rule through adoption of the AORC's newly suggested lower boundary) is objective because it clearly delineates which pulses are valid for the test procedure, thereby helping to meet the safety need of ensuring proper ELR lock-up. Furthermore, Ford did not state the criteria it believes necessary to define a corridor narrow enough to be objective. We would also note that, by definition, a corridor will accommodate more than one pulse; therefore, there will always be the possibility that the agency will choose to test a different pulse than the manufacturer.

In response to Dr. Ziv's comment, we would clarify that the ELR must meet the standard's requirements for any and all acceleration pulses that could be generated within the A-T corridor. Otherwise, proper functioning of the ELR could be limited to a highly targeted subset of the conceivable test pulses than would otherwise occur in actual crash events.

The NPRM proposed that the acceleration specifications under FMVSS No. 209 be recorded and processed according to the practices specified in SAE J211-1, rev. March 1995. It also proposed to require electronic signals to be filtered with an SAE Class 60 filter and use of an instrumentation-grade, high-accuracy ±10 g accelerometer. The proposal also called for use of a displacement transducer to measure webbing displacement. ( See S5.2(j)(3) of the NPRM.)

While generally supporting the aspect of the agency's proposal that would require proper filtering, TK Holdings recommended that, as part of the final rule, NHTSA require use of a ±20 g full-scale accelerometer because of the potential for damage to a ±10 g accelerometer during testing.

Both the AORC and Ford supported specification of the SAE Class 60 filter. However, they commented that NHTSA should further define the accelerometer type and that hardware/digital filters should be added in order to ensure objective test results. The AORC stated that in order to ensure meaningful comparisons, the data acquisition process must include identical sample rate, accelerometer sizing/type, and filtering. Accordingly, the AORC recommended adoption of a newer version of SAE J211-1 (December 2003), which was issued since the time of its initial petition, because the AORC believes that the updated versions of the SAE standard provides a more detailed data acquisition methodology; the AORC's view is that this change would help preclude the use of erroneous test conditions and facilitate correlation of data between test laboratories.

On another matter related to data acquisition, the AORC commented that the preamble of the NPRM discussed “direct measurement of webbing displacement,” but that related language was not incorporated into the proposed regulatory text. The AORC concurred with NHTSA that indirect measurement of webbing displacement by means of numeric integration could impart a degree of uncertainty to the results. The AORC suggested that it is unnecessary to accept such uncertainty, because all modern acceleration sleds utilized by the restraints industry and independent test laboratories use high-precision and high-accuracy linear displacement transducers. By nature of these instruments, the AORC argued that no interpretation or filtering is necessary. According to the AORC, test laboratories use one of two designs to measure webbing payout: (1) A pinch roller mechanism that acts directly on the webbing, with a transducer at the roller to measure webbing movement, or (2) a displacement transducer on a sled carriage that moves in a linear direction. The AORC suggested that NHTSA should add this information to the Laboratory Test Procedure for FMVSS No. 209.

In response to these comments, NHTSA has decided to make certain modifications in the final rule. We concur with the commenters that, with the development of the A-T corridor, the test procedures should be specific enough to ensure repeatability and reproducibility and that a more detailed data acquisition methodology would help preclude variance among testing laboratories and would improve test objectivity and enforceability. To this end, we have decided to adopt the AORC's recommendation to utilize SAE J211-1 (Dec. 2003 version), which we are incorporating by reference in FMVSS No. 209.

We also agree with the AORC that filtering is not necessary for data related to webbing payout, in light of the direct measurement equipment utilized by the industry. The agency's compliance test laboratories currently utilize high-precision and high-accuracy displacement transducers to directly measure webbing payout, thereby eliminating the need for numeric integration and data filtering. Accordingly, we have eliminated the statement in S5.2(j)(3) of the NPRM which had provided, “The displacement data shall be processed at Channel Frequency Class 60.”

However, we have decided not to adopt TK Holdings' recommendation that we adopt a ±20 g full-scale accelerometer, because we do not believe that such device is necessary for the present application. The commenter did not provide any supporting data to demonstrate that current ±10 g accelerometers are at a high risk for damage, and the agency is unaware of any accelerometer failures at its compliance test laboratories due to an overshoot in the acceleration pulse. Furthermore, we are concerned that the precision of the pulse up to 0.7 g would be diminished by switching to an accelerometer with a larger range. Accordingly, we have decided to retain the requirement for use of a ±10 g accelerometer.

The NPRM proposed to require a tolerance of ±3 degrees for all angles and orientation of the seat belt assemblies and components, unless otherwise specified. ( See S5.4 of the NPRM.)

On the issue of tolerances, the AORC, TK Holdings, and Ford all concurred that NPRM's proposed angle tolerances should not apply to requirements where a range of angles is specified. However, these commenters argued that the proposed tolerance of ±3 degrees is inappropriate for certain provisions of the standard, because it would necessitate a more sensitive ELR design, in order to compensate for mounting error during testing. The commenters stated that ELR designs with increased sensitivity are likely to be more nuisance-prone. For this reason, the AORC and TK Holdings recommended a tolerance level of ±0.5 degrees for the angles and orientations specifically addressed in the NPRM.

We agree with the commenters that a tolerance level of ±3 degrees for certain angle and orientation requirements might drive nuisance-prone ELR designs. Excessive tolerance, beyond the minimum level that is consistent with the ability of the test equipment, could introduce more error into the test procedure, thereby forcing unwanted compensation in the design of the ELR. Accordingly, we have decided to modify the relevant provisions in S5.2(j)(2) of the final rule to explicitly provide a tolerance level of ±0.5 degrees for all angle and orientation requirements contained in that paragraph. The language of S5.4, “Tolerance on angles,” has also been modified to reflect this change.

As noted above, the NPRM requested responses to several questions regarding the compliance of current ELRs to the proposed A-T corridor and methods that could be employed to accurately determine when ELR lock-up occurs. Each of the questions posed in the NPRM is repeated below, followed by the comments received on that issue, if any.

• The AORC suggested a corridor more narrowly defined at the beginning ( i.e., a 0-4 ms window). Would a narrower corridor as suggested by the AORC be feasible? Would a narrower corridor more accurately specify the A-T onset?

The AORC provided another suggested A-T corridor which was broader than the one it originally suggested. Specifically, the AORC extended the bottom portion of the corridor from 0-4 ms to 0-10 ms, in order to accommodate a potential lag in the initiation of the test pulse. However, the AORC's newly recommended corridor was narrower than the one proposed in the NPRM.

• Would any currently compliant emergency-locking retractor be unable to comply under the proposed corridor?

TK Holdings responded by stating that all of its currently compliant ELR seat belt assemblies would comply with the A-T corridor proposed in the NPRM.

• Is 50 ms at the beginning of the time period sufficient to allow for an initial peak above 0.7 g limit?

In response to this question, TK Holdings stated that 50 ms provides sufficient time to reach 0.7 g.

The agency notes that in this final rule, we have modified the lower boundary of the A-T corridor such that the initial peak must be obtained within 40 ms. However, we do not believe that this modification will impact any existing compliant ELR because agency data show that current acceleration pulses reach 0.7 g well before 40 ms.

• ELR lock-up occurs when rotation of the ELR gear assembly stops. The methods employed by test laboratories to determine ELR lock-up are indirect methods rather than direct measurement of the ELR gear. In general, an ELR lock-up occurrence is determined by the observation of a sudden change in sled acceleration-time curve. Thus, the exact time of lock-up is subject to test laboratory's interpretation of this event. We are requesting input on methods that can be employed in our test procedures to accurately determine when ELR lock-up occurs. Your response should include the following:

(a) The type of sensing device and/or test equipment to be employed for detecting lock-up.

(b) Any procedures for performing a lock-up test. Please provide technical support.

(c) Any criteria used to evaluate the lock-up condition. Please provide technical support.

The AORC and TK Holdings both responded to this question by suggesting the use of a threshold load, which they stated is consistent with current industry practice. According to the commenters, a typical set-up includes a belt load sensor in the webbing path between the fixed webbing end and the retractor. They stated that the standard industry practice is to use a 35 Newton (N) ±10 N belt load to indicate that a lock-up has occurred. However, the AORC argued that an additional 3-5 mm of allowable webbing payout is necessary to account for the additional webbing travel between the actual lock-up time and the time it takes to achieve a 35 N load on the webbing.

NHTSA understands that there is currently more than one methodology in use for determining ELR lock-up. Some laboratories use the industry standard (i.e., a 35 N threshold), while others determine lock-up through observation of a sudden change in the A-T curve. In the final rule, we have decided not to specify a required method for determining ELR lock-up for the following reasons. First, the industry load threshold approach is also an indirect measurement of lock-up, and the agency does not have sufficient technical information to assess and adopt that approach. Furthermore, we have not heard of any problems associated with existing methods for determining ELR lock-up.

The NPRM proposed to provide affected entities with lead time of one year from the time of publication of a final rule to meet the requirements of the amended standard.

The AORC and TK Holdings requested that the lead time for compliance with the final rule's requirements be extended from 12 months, as proposed, to 18 months. The commenters stated that such additional time is necessary to permit companies to purchase and to install new equipment, if necessary, to ensure compliance with the amended standard.

NHTSA has decided to extend the compliance date with these amendments to FMVSS No. 209 to 18 months after the date of issuance of this final rule, as requested by the commenters. Because we do not anticipate that the changes contained in this final rule would have any significant impact upon the effectiveness or compliance of existing ELRs, we believe that it is appropriate to afford companies additional time to purchase and configure their equipment, if necessary, to comply with the amended standard.

Commenters also raised a number of other sundry issues with the NPRM, as discussed below.

The AORC commented that in the proposed regulatory text in S4.3(j)(2), the agency changed certain wording in that paragraph from “when the retractor is subjected to an acceleration” to “after the retractor is subjected to an acceleration.” In its submission, the AORC argued that this wording change affects the meaning of that provision, and it requested that in the final rule, the agency revert to the original language.

We have decided to adopt the recommendation of the AORC and reintroduce the phrase “when the retractor is subjected to an acceleration” at the appropriate place in the final rule. We agree that using the phrase “after the retractor is subjected to an acceleration” could be misinterpreted as permitting the retractor to lock up anytime after an acceleration pulse of 0.7 g, something that the agency clearly did not intend. We believe that this modification will correctly capture the relationship between acceleration and ELR lock-up.

Renfroe Engineering commented that there is not any existing minimum acceleration requirement for webbing-sensitive retractors, so long as the assembly complies with the vehicle-sensitive test. It also argued that a range of 1-4 g is necessary to induce lock-up in webbing-sensitive retractors (although the commenter provided no technical data in support of this position). Accordingly, Renfroe Engineering requested that FMVSS No. 209 be amended to require ELRs equipped with dual-sensitive retractors to comply with the standard for both designs.

We believe that Renfroe's request is outside the scope of the present rulemaking. Furthermore, we believe that having two separate lock-up requirements for each assembly would introduce unnecessary duplicity into the standard, because compliance is based on whether or not the ELR locks up at the proper acceleration and webbing payout, regardless of the type of sensor used to accomplish this.

In a similar vein, the AORC raised the issue of “nuisance locking” for multi-sensing ELRs. Specifically, the AORC expressed concern about multi-sensing ELRs for which only the vehicle-sensing capability is certified, thereby leaving the webbing-sensing mode unchecked. The AORC stated that the vehicle sensor might engage a lock-up on a multi-sensing ELR when testing for a webbing-sensitive “no lock” by a 0.3 g acceleration of the retractor. To remedy this potential problem, the AORC suggested that the regulatory text be amended either by requiring webbing acceleration of 0.3 g for dual-sensing retractors or by providing a related provision in the test procedures. In addition, the AORC stated that on the issue of the requirements for locking of a webbing-sensitive retractor, the webbing of the retractor should be accelerated, rather than the retractor itself.

In a February 19, 1981 letter of interpretation to Mr. Frank Pepe, 11 we stated that dual-sensitive ELRs should be treated as either a vehicle-sensitive retractor or a webbing-sensitive retractor for purposes of the standard. In that letter, the agency explained its intention to require use of either type of retractor. Accordingly, the agency decided to require manufacturers to elect one type of retractor for certification purposes and to conduct testing for only that type of retractor (while voluntarily permitting a different type of retractor). In that interpretation letter, we expressed our belief that this approach would eliminate the apparent conflict that had arisen in the compliance envelopes established in S4.3(j)(1) and (2), given the compliance tolerances built into these dual-sensitive systems. That approach also would not discourage manufacturers from providing the overlapping protection of a dual-sensitive ELR.

As to the issue of whether the webbing or the retractor should be accelerated, the same letter of interpretation points out that paragraph S4.3(j)(2) specifically states that the retractor is to be accelerated, not the belt webbing, because there are inertial forces that react on the retractor during its acceleration that are not present when the webbing alone is accelerated. We believe that this reasoning remains valid, and it is reflected in the regulatory text of this final rule.

The agency has not been receiving complaints regarding “nuisance locking” of multi-sensing ELRs, and we do not believe that this issue presents a safety concern in the present fleet. However, if the agency were presented with supporting data to document a genuine problem, we might reconsider our 1981 interpretation.

In its comments, the AORC also argued as to the need for an A-T corridor for the no-lock requirement at an acceleration of no greater than 0.3 g, citing similar reasoning as contained in its petition for the corridor in the 0.7 g lock-up requirement. Specifically, the AORC recommended a corridor with only an upper boundary, with an initial onset rate of 150 g/sec and an upper limit sustained at 0.3 g.

After carefully considering the AORC's comment on this issue, we do not believe that it is necessary to amend the standard to provide an A-T corridor for the no-lock requirement because the existing specification is valid. In the existing standard, the requirement in S4.3(j)(2) states that the retractor shall not lock before the webbing payout extends to the minimum limit of 51 mm when the retractor is subjected to an acceleration no greater than 0.3 g, which is to occur within the first 50 ms and is to be sustained throughout the test. The agency believes that this requirement implicitly provides the appropriate boundary for the acceleration pulse (with a range specified at 0.3 g or less), so there is not any need to explicitly define an acceleration tolerance corridor for the no-lock requirement. We likewise do not believe that it is necessary to limit the onset rate limit to 150 g/sec. If the acceleration pulse meets the existing requirements of the hardware and data acquisition methodology, a no-lock corridor should not be necessary. Furthermore, even if we did agree with the AORC's suggestion in this regard, it would not be appropriate to make this change immediately in the final rule without the opportunity for public comment, because the issue of a no-lock corridor was not raised in either the AORC's original petition or the NPRM.

Public Citizen submitted its report titled, “Rolling Over on Safety: The Hidden Failures of Belts in Rollover Crashes,” which documents what that organization perceives to be inadequacies in current safety belt design and performance during rollover events. Although rollover crashes are a topic of significant concern for the agency, our assessment is that the Public Citizen report does not directly address the specific issues in this rulemaking because of the different nature of rollover sensors and seat belt technology such as pretensioners.

In preparing its June 3, 2004 proposal, NHTSA did not estimate benefits for this rulemaking because we anticipated that it would not result in substantial changes to the performance of emergency-locking retractors. This assessment has not changed at the final rule stage. These amendments to FMVSS No. 209 more directly affect the test procedure specifications and are intended only to clarify the test specifications.

NHTSA anticipates only a minimal cost burden to vehicle manufacturers from this final rule. Testing laboratories might have to develop new specifications for the instrumentation used to generate the acceleration pulses and may be required to obtain the specified accelerometer. However, NHTSA anticipates that only a small number of businesses will need to purchase new equipment, since the specifications were requested by the AORC in its petition. The members of the AORC constitute the majority of seat belt suppliers in the U.S. Those who would have to purchase new equipment may do so for a one-time, minimal cost to the test laboratory. Furthermore, it is anticipated that all current ELRs will continue to comply with FMVSS No. 209 without change under the final rule's amendments.

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. 12 These motor vehicle safety standards set a minimum standard for motor vehicle or motor vehicle equipment performance. 13 When prescribing such standards, the Secretary must consider all relevant, available motor vehicle safety information. 14 The Secretary also must 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 associated deaths. 15 The responsibility for promulgation of Federal motor vehicle safety standards has been delegated to NHTSA. 16

In developing this final rule to further clarify the test procedures of FMVSS No. 209, Seat Belt Assemblies , the agency carefully considered the statutory requirements of 49 U.S.C. Chapter 301.

First, this final rule arose from a petition for rulemaking brought by the industry association for seat belt assembly manufacturers, which recommended changes for amending the standard to more clearly define requirements and to establish a new test methodology for emergency-locking retractors. This final rule is preceded by an NPRM, which facilitated the efforts of the agency to obtain and consider relevant motor vehicle safety information, as well as public comments. Further, in preparing this document, the agency carefully evaluated available research, testing results, and other information related to various ELR technologies. In sum, this document reflects our consideration of all relevant, available motor vehicle safety information.

Second, to ensure that the requirements for ELRs are practicable, the agency considered the form and functionality of currently compliant ELRs, consistent with our safety objectives and the statutory requirements. We note that ELRs are already required on light vehicles, and we believe that it will be practicable to adopt the new requirements and test methodology of this final rule without necessitating redesigns on the part of ELR manufacturers. We expect that vehicle manufacturers will continue to have a number of technological choices available for meeting the requirements of the FMVSS No. 209 for ELRs. In sum, we believe that this final rule is practicable and will provide greater clarity in terms of the test procedures for ELRs.

Third, the regulatory text following this preamble is stated in objective terms in order to specify precisely what performance is required and how performance will be tested to ensure compliance with the standard. Specifically, the final rule sets forth performance requirements for operation of the ELR, including the circumstances under which the ELR must lock. The final rule also includes revised test requirements for ELRs, including establishment of a new acceleration-time corridor, provision of a tolerance for angle measurements, and adoption of the same instrumentation specifications currently found in other FMVSSs containing crash tests. The standard's test procedures carefully delineate how testing will be conducted. Thus, the agency believes that this test procedure is sufficiently objective and would not result in any uncertainty as to whether a given vehicle satisfies the requirements of FMVSS No. 209.

Fourth, we believe that this final rule will meet the need for motor vehicle safety because the standard will better define the acceleration pulse that will be utilized in testing ELRs, mechanisms which serve the critical function of ensuring that seat belts are properly locked up in the event of sudden deceleration or a crash.

Finally, we believe that this final rule is reasonable and appropriate for motor vehicles subject to the applicable requirements. As discussed elsewhere in this notice, the agency is addressing the petitioner's concern that to better define the ELR requirements and test procedures, actions which we do not expect will increase the present stringency of the standard or cause compliance problems for existing ELRs. Accordingly, we believe that this final rule is appropriate for the seat belt assemblies in covered vehicles that are subject to these provisions of FMVSS No. 209 because it furthers the agency's objective of preventing deaths and serious injuries by ensuring that ELRs in seat belts function properly.

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 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 by the Office of Management and Budget under Executive Order 12866. The rule is not considered to be significant within the meaning of E.O. 12866 or the Department of Transportation's Regulatory Policies and Procedures (44 FR 11034 (Feb. 26, 1979)). As stated above in Section V, Benefits and Costs , this final rule is not expected to require substantial changes in performance of emergency-locking retractors. Testing laboratories might need to develop new specifications for the instrumentation used to generate the acceleration pulses, but it is not expected to result in more than a minimal cost burden for manufacturers.

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 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.

NHTSA has considered the effects of this final rule under the Regulatory Flexibility Act. I certify that this final rule would not have a significant economic impact on a substantial number of small entities. The rationale for this certification is as follows. The final rule is expected to directly affect motor vehicle manufacturers, manufacturers of seat belt assemblies, and test laboratories. North American Industrial Classification System (NAICS) code numbers 336111, Automobile Manufacturing , and 336112, Light Truck and Utility Vehicle Manufacturing , prescribe a small business size standard of 1,000 or fewer employees. NAICS code No. 336399, All Other Motor Vehicle Parts Manufacturing , prescribes a small business size standard of 750 or fewer employees.

Most vehicle manufacturers would not qualify as a small business, and we understand that currently there are only four small motor vehicle manufacturers ( i.e. , only four with fewer than 1,000 employees) in the United States that will have to comply with this final rule. These manufacturers are expected to rely on suppliers to provide the seat belt assembly hardware, and then they would integrate it into their vehicles.

In addition, we note that this final rule has been promulgated in response to a petition for rulemaking from the AORC, which represents U.S. manufacturers of seat belt assemblies. The agency does not anticipate manufacturers of seat belt assemblies having any difficulty in complying with the final rule. The final rule might make it necessary for testing laboratories to develop new specifications for the instrumentation used to generate and record the acceleration pulses. We anticipate that this would result in only a minimal burden to seat belt manufacturers and vehicle manufacturers. Since test laboratories already have the instrumentation necessary to record the A-T response for compliance testing, we estimate the maximum, one-time cost to laboratories to be less than $500. This cost would be for the purchase of an instrument-grade, high-accuracy ±10 g accelerometer. In conclusion, the agency believes that this final rule will not have a significant economic impact upon a substantial number of small businesses.

Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999), 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.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency 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, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. NHTSA also may not issue a regulation with federalism implications and that preempts a State law unless the agency consults with State and local officials early in the process of developing the regulation.

NHTSA has analyzed this final rule in accordance with the principles and criteria set forth in Executive Order 13132, and the agency determined that the rule does not have sufficient Federalism implications to warrant consultations with State and local officials or the preparation of a Federalism summary impact statement. This final rule is not expected to have any substantial effects on the States, or on the current distribution of power and responsibilities among the various local officials.

Pursuant to Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), the agency has considered whether this rulemaking would have any retroactive effect. This final rule does 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 a suit in court.

Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, 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 the agency has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the agency 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 the agency.

This final rule is not subject to E.O. 13045 because it is not an economically significant regulatory action under Executive Order 12866 and because it does not involve decisions based on environmental, health, or safety risks that disproportionately affect children.

Under the Paperwork Reduction Act of 1995 (PRA) (Pub. L. 104-13), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule does not contain any collection of information requirements requiring review under the PRA.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272) directs the agency to evaluate and use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or is 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. The NTTAA directs us to provide Congress (through OMB) with explanations when we decide not to use available and applicable voluntary consensus standards. The NTTAA does not apply to symbols.

The amendments adopted in this final rule incorporate voluntary consensus standards adopted by the Society of Automotive Engineers. Accordingly, this final rule is in compliance with Section 12(d) of the NTTAA.

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 annually (adjusted for inflation with base year of 1995 (so currently about $112 million in 2001 dollars)). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the agency 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 the agency 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 of why that alternative was not adopted.

This final rule is not expected to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector in excess of $112 million annually.

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

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 18, 2001) applies to any rule that: (1) Is determined to be economically significant as defined under E.O. 12866, and is likely to have a significantly adverse effect on the supply of, distribution of, or use of energy; or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This final rule, which amends the acceptable pulse corridor for demonstrating compliance with the seat belt emergency-locking retractor specifications and incorporates SAE measurement procedures, is neither an economically significant rulemaking nor one likely to have a significant energy impact. Therefore, this final rule was not analyzed under E.O. 13211.

The Department of Transportation assigns a regulatory 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.

Please note that anyone is able to search the electronic form of all comments 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 .

On March 4, 2005, we, the U.S. Fish and Wildlife Service (Service), promulgated a special rule (70 FR 10493) under Section 4(d) of the Endangered Species Act of 1973, as amended (Act), to exempt the import and export of, and foreign and interstate commerce in, certain products of beluga sturgeon ( Huso huso ) from the permit requirements in 50 CFR 17.32 regarding the importation of threatened species. Errors were introduced into the regulatory text of the rule. We correct these errors now for the purpose of reinstating clarity. None of these changes are substantive.

This action is authorized by regulations implementing the Pacific Coast Groundfish Fishery Management Plan (FMP), which governs the groundfish fishery off Washington, Oregon, and California.

The regulations at 50 CFR 660.323(a) establish separate allocations for the catcher/processor, mothership, and shore-based sectors of the whiting fishery. For 2005, the 232,069 mt commercial harvest guideline for whiting is divided with the catcher/ processor sector receiving 78,903 mt (34 percent); the mothership sector receiving 55,696 mt (24 percent); and the shore-based sector receiving 97,469 mt (42 percent).

Regulations at 50 CFR 660.373(b) describe the primary season for each sector. The primary season for the shore-based sector is the period(s) when the large-scale target fishery is conducted, and when “per trip” limits are not in effect. Before and after the primary season, per-trip limits are in effect for whiting.

The best available information on August 16, 2005, indicates that 89,406 mt had been taken through August 14, 2005, and that the 97,469 mt shore-based allocation will be reached by 2100 l.t. August 18, 2005. This Federal Register document announces that the primary season for the shore-based sector ends on August 18, 2005, and a 10,000-lb (4,536 kg) trip limit is imposed as of August 18, 2005. Per-trip limits are for vessels using large or small footrope trawl gear and are intended to accommodate small bait and fresh fish markets, and bycatch in other fisheries. To minimize incidental catch of Chinook salmon by vessels fishing shoreward of the 100 fm (183 m) contour in the Eureka area, at any time during a fishing trip, a limit of 10,000-lb (4,536 kg) of whiting is in effect year-round, except when landings of whiting are prohibited.

For the reasons stated above, and in accordance with the regulations at 50 CFR 660.323(b)(3), NMFS herein announces:

Effective 2100 l.t. August 18, 2005, no more than 10,000-lb (4,536 kg) of whiting may be taken and retained, possessed or landed by any vessel participating in the shore-based sector of the whiting fishery, unless otherwise announced in the Federal Register . If a vessel fishes shoreward of the 100 fm (183 m) contour in the Eureka area (43° - 40°30′ N. lat.) at any time during a fishing trip, the 10,000-lb (4,536-kg) trip limit applies, as announced in the annual management measures at paragraph IV, B (3)(c)(ii), except when the whiting fishery is closed.

This action is authorized by the regulations implementing the FMP. The determination to take this action is based on the most recent data available. The Assistant Administrator for fisheries, NMFS, finds good cause to waive the requirement to provide prior notice and opportunity for comment on this action pursuant to 5 U.S.C. 553(b)(B), because providing prior notice and opportunity would be impracticable. It would be impracticable because if this closure were delayed in order to provide notice and comment, the fishery would be expected to greatly exceed the sector allocation. This would either result in the entire whiting optimum yield being exceeded, or in the allocations for the other sectors being reduced. Therefore, good cause also exists to waive the 30-day delay in effectiveness requirement of 5 U.S.C. 553 (d)(3). The aggregate data upon which the determination is based are available for public inspection at the Office of the Regional Administrator (see ADDRESSES ) during business hours. This action is taken under the authority of 50 CFR 660.323(b)(3) and is exempt from review under Executive Order 12866.