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 regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE237.” The postcard will be date stamped and returned to the commenter.

On November 1, 2005, Garmin International, Inc., 1200 E 151st St., Olathe, KS 66062, made an application to the FAA for a new Supplemental Type Certificate for the Mooney M20M and M20R. The Mooney M20M and M20R are currently approved under TC No. 2A3. The proposed modification incorporates a novel or unusual design feature, such as digital avionics consisting of a digital autopilot that is vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR part 21, § 21.101, Garmin International, Inc. must show that the Mooney M20M and M20R meet their original certification basis, as listed on Type Data Sheet 2A3, the additional certification requirements added for the GGFC-700 system, exemptions, if any; and the special conditions adopted by this rulemaking action. The additional certification requirements for the GFC-700 system and G1000 include 23.1301, 23.1309, 23.1311, 23.1322, 23.1353 and other rules at the amendment appropriate for the date of application. Further details of the certification basis for the installation of the GFC-700 autopilot and G1000 EFIS are available on request.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38 after public notice 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 already 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 under the provisions of § 21.101.

Garmin International, Inc., plans to incorporate certain novel and unusual design features into the Mooney M20M and M20R for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include an autopilot, which are susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.

Protection of Systems from High Intensity Radiated Fields (HIRF): Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid-state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.

A preliminary hazard analysis must be performed by the applicant for approval by the FAA to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions, whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

As discussed above, these special conditions are applicable to the Mooney M20M and M20R. Should Garmin International, Inc., apply at a later date for a supplemental type certificate to modify any other model on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on one model of airplane. 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.

The FAA proposed to amend 14 CFR part 39 with a proposed airworthiness directive (AD). The proposed AD applies to RRD models Tay 650-15 and 651-54 turbofan engines. We published the proposed AD in the Federal Register on July 25, 2005 (70 FR 42515). That action proposed to require the same actions as AD 2002-01-29 but extends the terminating action compliance time for Tay 650-15 engines.

You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. See ADDRESSES for the location.

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

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

There are about 400 Tay 650-15 and 651-54 turbofan engines of the affected design in the worldwide fleet. We estimate that 105 engines installed on airplanes of U.S. registry will be affected by this AD. We also estimate that it will take about 3 work hours per engine to perform the proposed borescope inspection, and that the average labor rate is $65 per work hour. Required parts will cost about $3,200 per engine. We estimate that one third of the engines will have the parts replaced at time of engine overhaul. We also estimate that one third of the engines will have the parts replaced during an engine mid-life shop visit. We also estimate that one third of the engines will have the parts replaced at an engine shop visit dedicated for these parts replacements, at a cost of about $90,000 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $3,600,000.

Paragraph (f) of the current AD, AD 2002-01-29, contains a paragraph pertaining to special flight permits. Even though this AD does not contain a similar paragraph, we have made no changes with regard to the use of special flight permits to operate the airplane to a repair facility to do the work required by this AD. In July 2002, we published a new Part 39 that contains a general authority regarding special flight permits and airworthiness directives; see Docket No. FAA-2004-8460, Amendment 39-9474 (69 FR 47998, July 22, 2002). Thus, when we now supersede ADs we will not include a specific paragraph on special flight permits unless we want to limit the use of that general authority granted in section 39.23.

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 summary of the costs to comply with this AD 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 “AD Docket No. 2001-NE-02-AD” in your request.

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 Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes; Model A300 C4-605R Variant F airplanes (collectively called A300-600 series airplanes); and Model A310 series airplanes. That NPRM was published in the Federal Register on June 22, 2005 (70 FR 36073). That NPRM proposed to require inspecting for certain serial numbers on elevators, and doing a detailed inspection, visual inspection with a low-angle light, and tap-test inspection of the upper and lower surfaces of the external skins on certain identified elevators for any damage (i.e., debonding of the graphite fiber reinforced plastic/Tedlar film protection, bulges, debonding of the honeycomb core to the carbon fiber reinforced plastic, abnormal surface reflections, and torn-out plies), and corrective actions if necessary.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment received.

The commenter, the airplane manufacturer, requests that we clarify the applicability statement of the proposed AD. The proposed AD states that the AD would apply to affected models “equipped with carbon fiber elevators having part number (P/N) A55276055000 (left-hand side) or P/N A55276056000 (right-hand side).” The commenter notes that the related French airworthiness directive states that it is effective for affected models “equipped with carbon fiber elevators P/N A55276055000 (left-hand side) and P/N A55276056000 (right-hand side), installed as per modification 4805, * * *.” The commenter asks that we revise the applicability statement of the proposed AD to indicate that an affected airplane would be equipped with both the left- and right-hand side P/Ns, and that the proposed AD only applies to airplanes with these P/Ns installed in accordance with (Airbus) Modification 4805.

We partially agree with the commenter's request.

After the comment period closed, we coordinated with the commenter to gain a better understanding of its comments. This coordination resulted in agreement between the FAA and the commenter that, because carbon fiber elevators are interchangeable among any airplanes with Airbus Modification 4805, it is more appropriate for this AD to apply to affected models “equipped with carbon fiber elevators P/N A55276055000 (left-hand side) or P/N A55276056000 (right-hand side),” as specified in the NPRM. (The commenter requests that we disregard its former objection concerning the use of “or” instead of “and.”) Thus, no change is needed in this regard.

Regarding the commenter's other request, we agree to revise the applicability statement to clarify that carbon fiber elevators with the affected P/Ns were installed under Airbus Modification 4805.

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

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

We have carefully reviewed the available data, including the comment 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 neither increase the economic burden on any operator nor increase the scope of the AD.

This is considered to be interim action. The manufacturer has advised that it currently is developing a modification that will address the unsafe condition addressed by this AD. Once this modification is developed, approved, and available, the FAA may consider additional rulemaking.

This AD will affect about 172 airplanes of U.S. registry.

The inspection for the serial number 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 this action for U.S. operators is $11,180, or $65 per airplane.

The detailed inspection, visual inspection with a low-angle light, and tap-test inspection of the elevator will take about 3 work hours per elevator (two elevators per airplane), at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of this action for U.S. operators is $67,080, or $390 per airplane, per inspection cycle.

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.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain EMBRAER Model EMB-135 and -145 series airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on September 21, 2005 (70 FR 55310). That action proposed to require performing repetitive inspections for cracks, ruptures, or bends in certain components of the elevator control system; replacing discrepant components; and, for certain airplanes, installing a new spring cartridge and implementing new logic for the electromechanical gust lock system. The proposed AD also would have required eventual modification of the elevator gust lock system to replace the mechanical system with an electromechanical system, which would terminate the repetitive inspections.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments to the proposed AD were received.

In paragraph (c)(2) of the supplemental NPRM we inadvertently used an incorrect date for EMBRAER Service Bulletin 145-27-0086, Change 04, dated March 21, 2005, and have corrected the date accordingly in the final rule.

We have revised paragraphs (c)(1)(i) and (c)(1)(ii) of this AD to clarify that the actions required by those paragraphs must be done in accordance with EMBRAER Service Bulletin 145-27-0075, Revision 08, dated March 3, 2005.

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

We specify model designations in the applicability of this proposed AD as those designations are published in the most recent type certificate data sheet for the affected models. These model designations differ in the referenced service bulletin(s).

We have carefully reviewed the available data 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 neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that 300 airplanes of U.S. registry will be affected by this AD.

It will take approximately 1 work hour per airplane, per inspection cycle, to accomplish the inspection, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of this action on U.S. operators is estimated to be $19,500, or $65 per airplane, per inspection cycle.

We estimate that 108 airplanes of U.S. registry will be subject to EMBRAER Service Bulletin 145-27-0075, Revision 08, dated March 3, 2005. For these airplanes, it will take up to 65 work hours to accomplish the modification in that service bulletin, at an average labor rate of $65 per work hour. Required parts will cost up to $14,000 per airplane. Based on these figures, the cost impact of this action on U.S. operators is estimated to be up to $1,968,300, or $18,225 per airplane.

We estimate that 192 airplanes of U.S. registry will be subject to EMBRAER Service Bulletin 145-27-0086, Change 04, dated March 21, 2005. For these airplanes, it will take approximately 133 work hours to accomplish the modification in that service bulletin, at an average labor rate of $65 per work hour. Required parts will cost up to $23,164 per airplane. Based on these figures, the cost impact of this action on U.S. operators is estimated to be up to $6,107,328, or $31,809 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

You may examine the airworthiness directive (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 supersedes AD 98-19-22, amendment 39-10763 (63 FR 49656, September 17, 1998). The existing AD applies to certain Airbus Model A300-600 and A310 series airplanes. That NPRM was published in the Federal Register on August 22, 2005 (70 FR 48911). That NPRM proposed to require repetitive inspections for corrosion on the rear pressure bulkhead between stringer (STGR) 27 (right hand) and STGR27 (left hand), and related investigative/corrective actions if necessary; and sending a report of certain information to the manufacturer.

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.

The commenter states that Airbus has revised Service Bulletin A300-53-6136, dated October 27, 2004, which was referenced as the appropriate source of service information for accomplishing the proposed actions for certain Airbus airplanes. The commenter points out that this service bulletin is now at Revision 01, dated July 18, 2005. The commenter states that Revision 01 of Service Bulletin A300-53-6136 corrects the flow chart in Figure 1 of the service bulletin by changing the sequence of certain inspections, removes information in a flag note, and removes the replacement of titanium fasteners in certain circumstances. The commenter recommends that we reference Airbus Service Bulletin A300-53-6136, Revision 01, and that we also give credit for actions done before the effective date of this AD in accordance with the original issue of this service bulletin.

We agree with the commenter. We have revised Table 1 of the AD to refer to Airbus Service Bulletin A300-53-6136, Revision 01, dated July 18, 2005. In addition, the other service bulletins referenced in the NPRM have also been revised. (Airbus Service Bulletins A300-53-0363 and A310-53-2114, both dated October 27, 2004, were referenced as the appropriate source of service information for accomplishing the proposed actions for certain other Airbus airplanes.) The additional new revisions are Airbus Service Bulletin A300-53-0363, Revision 01, dated June 10, 2005; and Airbus Service Bulletin A310-53-2114, Revision 01, dated September 1, 2005. The revised service bulletins change the compliance of the service bulletin from “recommended” to “mandatory,” and amend the effectivity. None of the revisions increase the economic burden on any operator or increase the scope of the AD. We have also added a new paragraph (j) to the AD to give credit to operators that have accomplished the actions in accordance with the original issue of the service bulletins.

The commenter requests that we ensure that operators of airplanes on which the proposed inspections were done before the effective date of the AD be given credit for inspections accomplished before that date. The commenter states that, as defined in paragraph (g) of the NPRM, operators that had previously accomplished the inspections would be forced to re-accomplish the inspections within 18 months after the effective date of the AD. The commenter requests that the AD allow credit for any inspection done in accordance with Airbus Service Bulletin A300-53-6136, either the original issue or Revision 01, prior to the effective date of the AD, and that the repetitive interval be measured from the initial inspection, or 18 months after the effective date of the AD, whichever is later.

We partially agree with the commenter. We agree that operators should be given credit for actions accomplished previously in accordance with approved service bulletins. We do not agree that it is necessary to change the AD to give credit. Paragraph (e) of the AD states, “You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.” It is possible that on some airplanes the actions were done before the effective date of this AD. On these airplanes, these actions are not required to be repeated, as allowed by the phrase, “unless the actions have already been done,” provided the inspections were performed at the same level of complexity and using equipment comparable to that specified for the detailed and special detailed inspections, as applicable, defined in Note 1 and Note 2 of this AD. If the initial inspection has already been done, then the repetitive intervals are measured from the date of completion of the initial inspection. However, any action that has not been accomplished on these airplanes must be done at the time specified in the AD. We have not changed the AD in this regard. Operators may apply for an approval of an alternative method of compliance (AMOC) in accordance with the provisions in paragraph (k) of this AD.

The commenter states that the requirement to report corrosion in paragraph (i) of the NPRM is redundant to the current mandatory reporting requirements in Section 121.703 (“Mechanical reliability reports”) of the Federal Aviation Regulations (14 CFR 121.703); and the future requirements in Section 121.704 (“Service difficulty reports (structural)”) of the Federal Aviation Regulations (14 CFR 121.704). The commenter points out that paragraph (g) of the NPRM already says, “Do any applicable investigative and corrective actions before further flight in accordance with the applicable service bulletin.” The commenter states that this statement mandates that the service bulletin be followed verbatim, which includes the reporting requirement. The commenter further states that paragraph (h) of the NPRM ensures that the FAA will be aware of findings because that paragraph specifies that if the service bulletin recommends contacting Airbus for repair instructions, the repair must instead be approved by the FAA. Considering all these methods of reporting information, the commenter states that Airbus, the FAA, and the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, will have adequate data to determine the extent of corrosion problems in the affected fleet without the report in paragraph (i) of the NPRM. Therefore, the commenter requests that the reporting requirement in paragraph (i) be removed from the AD.

We disagree with the commenter. Paragraph (i) of the NPRM specifies sending the results of the inspection findings to Airbus, whereas the cited Federal Aviation Regulations specify to send such reports to the FAA. As stated in the NPRM, the intent of the reports is to enable Airbus to obtain better insight into the nature, cause, and extent of the corrosion, and to develop a final action to address the unsafe condition; at which time we may consider further rulemaking.

In addition, although paragraph (g) of the NPRM specifies to do all “related investigative and corrective actions” in accordance with the service bulletin, the report is neither an investigative nor a corrective action. However, if the report were interpreted to be either an investigative or a corrective action, and was therefore required in accordance with paragraph (g), then the report also would be required to be done before further flight, which would ground an airplane until the report was submitted. The report in paragraph (i) of the NPRM does not have to be submitted until 30 days after the inspection.

Finally, we do not require reports in ADs unless we find that the information is necessary for us, the affected airworthiness authority, or the manufacturer to assess the unsafe condition. The Paperwork Reduction Act requires agencies to consider the extent of the paperwork burden that will accompany any new rule. This Act is intended to reduce these burdens by requiring agencies not only to analyze the information collection and reporting costs they are imposing on the private sector, but to use those analyses to minimize the cost. Therefore, it is our practice to specify when the reports are required, and also to identify when a service bulletin contains a report that is not a requirement of the AD.

We have not changed the AD in this regard.

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

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 neither increase the economic burden on any operator nor increase the scope of the AD.

Revision 01 of Airbus Service Bulletins A300-53-6136, A300-53-0363, and A310-53-2114, refer to the original issues of those service bulletins as being dated November 1, 2004. However, the date printed on the original issue of those service bulletins is October 27, 2004. We have changed the referenced dates for these service bulletins to October 27, 2004.

This AD is considered to be interim action. The reports that are required by this AD will enable the manufacturer to obtain better insight into the nature, cause, and extent of the corrosion, and eventually to develop final action to address the unsafe condition. Once final action has been identified, we may consider further rulemaking.

This AD affects about 190 airplanes of U.S. registry. The new actions take about 10 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the new actions specified in this AD for U.S. operators is $123,500, or $650 per airplane, per inspection cycle.

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.

We proposed to amend 14 CFR part 39 with a proposed airworthiness directive (AD). The proposed AD applies to Turbomeca Artouste III series turboshaft engines. We published the proposed AD in the Federal Register on June 23, 2005 (70 FR 36355). That action proposed to require smoke emission checks after every ground engine shutdown, and if necessary, additional checks and possibly removing the engine from service. That action also proposed to require initial inspection of central labyrinths not previously inspected at reduced compliance times, or not replaced after the engine logged 1,500 operating hours, and, replacement if necessary. That action also proposed to add repetitive inspections of the central labyrinth. Additionally, that action proposed to require the removal of the injection wheels at a new lower life limit.

You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. See ADDRESSES for the location.

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

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

About 1,062 Turbomeca Artouste III engines of the affected design are in the worldwide fleet. We estimate that 59 engines installed on helicopters of U.S. registry will be affected by this AD. We also estimate that it will take about 31 work hours per engine to perform the required actions, and that the average labor rate is $65 per work hour. Required parts will cost about $8,100 per engine. Based on these figures, we estimate the AD will cost U.S. operators $596,785.

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 summary of the costs to comply with this AD 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 “AD Docket No. 99-NE-33-AD” in your request.

Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. 94-435, 90 Stat. 1390, and amended by Pub. L. 106-553, 114 Stat. 2762 (“HSR Act”), requires all persons contemplating certain mergers or acquisitions to file notification with the Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice (“Assistant Attorney General”). The HSR Act further provides that such persons must wait a designated period of time before consummating such transactions. Congress empowered the Commission, with the concurrence of the Assistant Attorney General, to require “that the notification * * * be in such form and contain such documentary material and information * * * as is necessary and appropriate” to enable the agencies “to determine whether such acquisitions may, if consummated, violate the antitrust laws.” Congress similarly granted rulemaking authority to, inter alia , “prescribe such other rules as may be necessary and appropriate to carry out the purposes of this section.” 15 U.S.C.18a(d). Pursuant to this section, the Commission, with the concurrence of the Assistant Attorney General, promulgated rules governing the filing process (“Rules”)  1 and the Antitrust Improvements Act Notification and Report Form for Certain Mergers and Acquisitions and accompanying Instructions on July 31, 1978, with an effective date of September 5, 1978, 43 FR 33450 (July 31, 1978). The agencies have since amended or revised the Rules and Form on multiple occasions.

Completion of the Form provides the Commission and the Assistant Attorney General with information and documentary material necessary to conduct an initial review of mergers, acquisitions, and other similar transactions. The Form is not designed to elicit all potentially relevant information relating to a transaction; rather, the information requested assists the Commission and the Assistant Attorney General in determining whether to open an investigation or, alternatively, whether to grant a request for early termination of the waiting period or to allow the waiting period to expire if no such request has been made.

The Form and Instructions currently require that filing persons report revenue data contained in the “North American Industry Classification System, 1997” and the “1997 Numerical List of Manufactured and Mineral Products.” This requirement was established in a 2001 rulemaking  2 that changed the required reporting format from the Standard Industrial Classification (“SIC”) to the North American Industry Classification System (“NAICS”). The Executive Office of the President, Office of Management and Budget (“OMB”) recently published its North American Industry Classification System—United States, 2002 (“2002 NAICS Manual”) and the Census Bureau has published its 2002 Numerical List of Manufactured and Mineral Products. To allow use of this updated information, the Form and Instructions are hereby amended to replace references to the 1997 base year with a 2002 base year and to replace the references to the 1997 Numerical List of Manufactured and Mineral Products (EC97M31R-NL) with the 2002 Numerical List of Manufactured and Mineral Products (EC02M31R-NL).

The Commission, with the concurrence of the Assistant Attorney General, is adopting and implementing these amendments to the Form and the Instructions relating to Item 5 and Item 7, as well as to Section 801.1(j) of the Rules, to require submission of 2002 NAICS information. The Commission has traditionally relied upon the most current economic data to analyze the potential anticompetitive effects of proposed transactions. 3 The information in the 2002 NAICS Manual and 2002 Numerical List of Manufactured and Mineral Products is the most current information available. We reiterate that filing parties may use either the 1997 or 2002 year for 30 days following the effective date December 30, 2005, provided that all filing parties to a transaction use the same year and use the same codes for Item 7.

Paragraph (j), the definition of Engaged in Manufacturing, is amended to refer to the 2002 edition of the North American Industry Classification System, rather than the 1997 edition.

Generally, references to “1997 base year” will be replaced with “2002 base year” throughout the Form and Instructions. Filing persons should refer to the “2002 NAICS Manual” and the “2002 Numerical List of Manufactured and Mineral Products,” published by the Census Bureau to locate product class codes and product codes. 4

In response to Item 5 of the Form, filing parties are required to provide revenue data for the most current year and the base year. Specifically, Item 5 is amended as follows: Item 5(a) requires that the filing person provide 2002 base year revenue data for each 6-digit NAICS industry code(s) in which it derived revenues. Item 5(b)(i) requires that a filing person engaged in manufacturing provide 2002 base year revenue for each 10-digit NAICS-based product code(s) in which it derived revenue. Item 5(b)(ii) requires that the filing person identify each manufactured product it has added or deleted since 2002 by 10-digit NAICS-based product code(s).

In response to Item 7 of the Form, for specified industries, filers are required to provide 6-digit NAICS industry codes and descriptions and to list geographic markets for any industry in which the filer and any other party to the transaction derived revenues. Many of these referenced NAICS codes have been changed in the 2002 update. The Instructions to Item 7, specifically Items 7(c)(ii), (iii), (iv), and (v), are amended to identify the updated 2002 codes.

The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that the agency conduct an initial and final regulatory analysis of the anticipated economic impact of the proposed amendments on small businesses, except where the Commission certifies that the regulatory action will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605.

Because of the size of the transactions necessary to invoke a Hart-Scott-Rodino filing, the premerger notification rules rarely, if ever, affect small businesses. Indeed, the 2000 amendments to the Act were intended to reduce the burden of the premerger notification program by exempting all transactions valued at $50 million or less. 5 Further, none of the proposed rule amendments changes the coverage of the premerger notification rules in any way that would affect small business. Accordingly, the Commission certifies that these proposed rules will not have a significant economic impact on a substantial number of small entities. This document serves as the required notice of this certification to the Small Business Administration.

The Paperwork Reduction Act, 44 U.S.C. 3501-3518, requires agencies to submit “collections of information” to the Office of Management and Budget (“OMB”) and obtain clearance before instituting them. Such collections of information include reporting, record keeping, or disclosure requirements contained in regulations. The information collection requirements in the HSR Rules and Form have been reviewed and approved by OMB under OMB Control No. 3084-0005. The current clearance expires on May 31, 2007.

The Commission's proposed revisions to the Form and Rules do not “substantive[ly] or material[ly] modify” the existing terms of the currently approved collection of information (OMB Control Number 3084-0005) to necessitate OMB's further review and approval. See 44 U.S.C. 3507(h)(3); 5 CFR 1320.5(g). The individual rule modifications are described more fully below.

These rule changes are procedural and do not alter the existing legal obligations of filing parties to submit the most currently available industry classification information. Accordingly, the amendments are not subject to the notice and comment requirements of the Administrative Procedure Act. See 5 U.S.C. 553(b)(A).

Section 2003 of The Transportation Equity Act for the 21st Century (TEA-21), Pub. L. 105-178 (1998) established a new occupant protection incentive grant program under Section 405 of Title 23, United States Code. Under this program, States could qualify for incentive grant funds by adopting and implementing effective programs to reduce highway deaths and injuries resulting from individuals riding unrestrained or improperly restrained in motor vehicles. The program made grant funds available from fiscal year (FY) 1998 through FY 2003, and was continued through FY 2005 by Congressional appropriations extending TEA-21 grant programs. On August 10, 2005, the President signed into law the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (SAFETEA-LU), Pub. L. 109-59. SAFETEA-LU extends the occupant protection incentive grant program from FY 2006 through FY 2009.

On November 14, 2005, NHTSA issued an interim final rule and technical amendments to the regulation governing the Occupant Protection Incentive Grant program, 23 CFR part 1345, in light of SAFETEA-LU's extension of the program. The technical amendments conformed the dates of the regulation to those in SAFETEA-LU. The interim final rule proposed to change the application due date from August 1 to February 15 of the applicable fiscal year. We indicated that an earlier application due date is appropriate for the new program because less lead time is necessary for States to submit applications under the extension of this well-established program. We also noted that the new due date would allow these grant funds to be awarded in time for spring national safety belt mobilization campaigns. We solicited comments from the States on this single issue until December 14, 2005. No comments were received. Therefore, this final rule adopts our proposed change to the application due date in § 1345.4(a)(4) from August 1 of the applicable fiscal year to February 15. The agency finds good cause to make this rule effective immediately, because of the need to give States sufficient notice of application requirements.

The statutory basis for this rule is the Safe, Accountable, Flexible, Efficient Transportation Equity Act “ A Legacy for Users (SAFETEA-LU), Pub. L. 109-59 (2005). SAFETEA-LU extends the occupant protection incentive grant program from FY 2006 through FY 2009 by amending provisions of 23 U.S.C. 405.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. This rulemaking document is not significant under Executive Order 12866 or the Department of Transportation's (DOT) regulatory policies and procedures. (44 FR 11034, February 26, 1979.) This rulemaking action makes only a single change—an amendment to the application due date “ to the regulation governing the Occupant Protection Incentive Grant program. It will not impose any additional burden on any person. The agency believes that this impact is minimal and does not warrant the preparation of a regulatory evaluation.

We have not conducted an evaluation of the impacts of this final rule under the National Environmental Policy Act. This rulemaking action makes only a single change—an amendment to the application due date—to the regulation governing the Occupant Protection Incentive Grant program. This rulemaking does not impose any change that would result in any environmental impacts. Accordingly, no environmental assessment is required.

Pursuant to the Regulatory Flexibility Act, we have considered the impacts of this rulemaking action on small entities (5 U.S.C. 601 et seq. ). I certify that this rulemaking action will not have a significant economic impact upon a substantial number of small entities within the context of the Regulatory Flexibility Act. This rulemaking action makes only a single change—an amendment to the application due date—to the regulation governing the Occupant Protection Incentive Grant program. States are the recipients of any funds awarded under this program, and they are not considered to be small entities, as that term is defined in the Regulatory Flexibility Act. Accordingly, we have not prepared a Final Regulatory Flexibility Analysis.

E.O. 13132 requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” This final rule does not change the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government as specified in E.O. 13132. This final rule merely changes the application due date in § 1345.4(a)(4) from August 1 of applicable fiscal year to February 15.

This final rule does not add any new information collection requirements, as that term is defined by the Office of Management and Budget (OMB) in 5 CFR part 1320. The existing requirements have been submitted previously to and approved by OMB, pursuant to the Paperwork Reduction Act (44 U.S.C. 3501, et seq. ). These requirements have been approved under OMB No. 2127-0600, through April 30, 2008.

The Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. This action will not result in additional expenditures by state, local or tribal governments or by any members of the private sector. Therefore, the agency has not prepared an economic assessment pursuant to the Unfunded Mandates Reform Act.

This final rule does not have any retroactive effect. A petition for reconsideration or other administrative proceedings are not required before parties may file suit in court.

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 .

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

By letter dated October 17, 2005 (Administrative Record Number WV-1441), the West Virginia Department of Environmental Protection (WVDEP) submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). The amendment consists of a proposed emergency rule revision to CSR 38-2-11.3.a.3 concerning surety bonds, a briefing document, an emergency rule justification, which includes an affidavit that was submitted in support of the emergency rule package, and a decision by the Secretary of State dated October 11, 2005, approving the emergency rule.

In its submittal of this amendment, the WVDEP stated that its current rule at CSR 38-2-11.3.a.3 requires that after July 1, 2001, a surety must be recognized by the Treasurer of the State as holding a certificate of authority from the United States Department of the Treasury as an acceptable surety on Federal bonds (otherwise referred to as being “T-Listed”). The WVDEP stated that the original standard was adopted to address concerns about the financial solvency of sureties providing reclamation bonds in West Virginia. The WVDEP did not have the necessary resources or expertise to regularly and timely monitor the financial condition of sureties doing business in West Virginia. However, a surety that is T-Listed is required to provide, on a regular basis, financial information to the U.S. Department of the Treasury, which reviews this information and provides its findings to State regulatory agencies. While this information provided by the Department of the Treasury has been helpful, WVDEP stated, this restriction has prevented sureties that are not T-Listed, and that are otherwise in good financial condition, from providing reclamation bonds in West Virginia. The WVDEP stated that this, along with other reasons, has adversely impacted the market for reclamation bonds in West Virginia. Further, the WVDEP stated, since a surety must have at least two years experience providing surety bonds before it can be T-Listed, a new insurance company or an existing insurance company that has not previously issued surety bonds cannot offer surety bonds in West Virginia.

The WVDEP stated that the emergency rule amendment to CSR 38-2-11.3.a.3 not only addresses the concerns noted above by providing an alternative source of reliable financial information about the surety, but it also allows sureties that are licensed and in good financial condition but are not T-Listed to provide surety bonds in West Virginia.

The WVDEP stated that an “emergency” exists under the State's Administrative Procedures Act because there is presently a great demand for reclamation bonds from the coal industry in West Virginia that is not being met by the limited number of sureties currently offering surety bonds in West Virginia. As a result, alternative, more expensive means are being used by coal companies to comply with the State's bonding requirements. Among other things, this has greatly restricted the availability of capital for the development of new coal mines and the creation of new jobs. The State acknowledges that at a time when coal is so important to West Virginia's economy, this dearth of surety bonds is having a significant negative impact on West Virginia's coal industry. The proposed amendment to 38 CSR 2 is thus necessary “to prevent substantial harm to the public interest.”

By electronic mail dated November 4, 2005, WVDEP submitted revisions it made to its emergency rule based upon the State's comment period which ended on October 27, 2005 (Administrative Record Number WV-1447). The revision package consists of the amended emergency rule, Form #8 Notice of an Emergency Amendment to an Emergency Rule, amended Emergency Rule Questionnaire dated October 28, 2005, and Form #3 Notice of Agency Approval of a Proposed Rule and Filing with the Legislative Rulemaking Review Committee. These documents were filed with the West Virginia Secretary of State and the Legislative Rulemaking Review Committee on November 2, 2005.

We announced receipt of the proposed amendment in the November 8, 2005, Federal Register (70 FR 67654). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the proposed amendment (Administrative Record Number WV-1448). We did not hold a hearing or a meeting because no one requested one. The public comment period closed on December 8, 2005. We received comments from one industry organization and one Federal agency.

Following are the findings that we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment in full, as modified on November 4, 2005. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes and are approved here without discussion.

The existing rule currently provides that surety received after July 1, 2001, must be recognized by the Treasurer of the State as holding a current certificate of authority from the U.S. Department of the Treasury as an acceptable surety on Federal bonds. In its October 17, 2005, submittal, CSR 38-2-11.3.a.3 was proposed to be amended by adding new language at the end of the existing requirement to provide as follows:

The WVDEP filed the emergency rule with the West Virginia Secretary of State on September 21, 2005. The Secretary of State approved the rule on an emergency basis pursuant to W. Va. Code 29A-3-15a on October 11, 2005.

The WVDEP also filed a legislative rule containing the same language with the Secretary of State on September 21, 2005 (Administrative Record Number WV-1442). At the same time, the State announced a public comment period on the legislative rule. The public comment period commenced on September 21, 2005, and closed on October 27, 2005. A public hearing was held at the WVDEP office in Kanawha City prior to the close of the comment period.

On October 3, 2005, the WVDEP provided OSM a copy of the proposed rule for informal review. Unlike the State's existing surety bond provisions at CSR 38-2-11.3.a.1 and the Federal surety bond requirements at 30 CFR 800.20(a), the proposed revision at CSR 38-2-11.3.a.3 did not appear to require the surety to be licensed to do business in the State. To resolve this concern and to make additional clarifications without altering the purpose or intent of either the emergency or the legislative rule, on October 14, 2005 (Administrative Record Number WV-1443), OSM recommended that the language in both rules be revised as follows:

At the time, State officials agreed that while the recommended technical revisions offered by OSM appeared to clarify that a surety must be licensed to do business in the State and did not change the intent of their initial rule, they needed to wait until after the close of their comment period before making any changes to the rule. The WVDEP stated that it would submit the revisions and any additional changes to OSM after the close of the State's comment period on October 27, 2005. The WVDEP further stated that the revision would be in the form of both an emergency and a legislative rule. We subsequently stated in our November 8, 2005, proposed rule notice that if the WVDEP submits revised rules that contain language identical to the language recommended by OSM, and quoted above, that revised language would be acted upon by OSM in this final rulemaking. If substantive changes beyond or other than those recommended by OSM were included in the revised rules, we stated that we may need to reopen the comment period.

The legislative rule was submitted to the Legislative Rulemaking Review Committee after the close of the comment period, and it is to be acted upon by the West Virginia Legislature during the upcoming 2005-2006 regular legislative session. If that rule is adopted with the identical language recommended by OSM as quoted above, no further action will be required by OSM, and it will become part of West Virginia's permanent regulatory program upon submission by the State.

Given that an emergency situation currently exists in West Virginia with regard to surety bonds and to avoid any unnecessary delays in approving the proposed State rule, we requested comments on both the proposed State rule and our suggested revisions to that rule as quoted above. We stated in the proposed rule notice that any changes adopted by the State after the close of its public comment period would result in the revision to both its emergency and legislative rules. As mentioned above, any substantive changes in the proposed State rules that go beyond the suggested language provided by OSM and quoted above would also be subject to further rulemaking.

In its November 4, 2005, submittal, the WVDEP provided revisions to its emergency rule at CSR 38-2-11.3.a.3 that were approved by the West Virginia Secretary of State. The effective date of the revision is September 21, 2005. As proposed in the State's November 4, 2005, submittal, the existing language was deleted and CSR 38-2-11.3.a.3 now provides as follows:

With the exception of the typographical error which the State intends to correct (“to” should be changed to “of”), we find that the revised emergency rule language submitted by the State on November 4, 2005, is identical to the language that OSM recommended it adopt, and that is quoted above, to resolve our initial concerns with the language that was submitted on October 17, 2005. Furthermore, we find that, as amended, the emergency rule at CSR 38-2-11.3.a.3 contains changes that have no direct Federal counterparts, but is, nevertheless, consistent with and no less effective than the Federal regulations at 30 CFR 800.20(a) concerning surety bonds and can be approved. As we stated above, the legislative rule that will make permanent the provisions of the emergency rule was submitted to the West Virginia Legislative Rulemaking Review Committee on November 2, 2005. That provision will be acted upon by the West Virginia Legislature during the upcoming 2005-2006 regular legislative session. If that legislative rule is adopted with language identical to that which we are approving here, and quoted above, no further action will be required by OSM, and it will become part of West Virginia's permanent regulatory program upon submission by the State. Any substantive changes to that legislative rule that go beyond the language that we are approving here and quoted above will be subject to public review and further rulemaking.

We published a Federal Register notice on November 8, 2005, and asked for public comments on the proposed State amendment (Administrative Record Number WV-1448). One organization responded on December 2, 2005 (Administrative Record Number WV-1450). The West Virginia Coal Association (WVCA) encouraged OSM's approval of the amendment. According to the WVCA, there are currently a very limited number of surety companies offering surety bonds in West Virginia. Because of market conditions, there is a great demand for surety bonds. The WVCA said that the proposed amendment would not only have the potential to increase the availability of bonds in West Virginia, but it would do so without increasing any risk for the State. It would only allow surety companies that are licensed in West Virginia and in good standing/good financial condition, but are not T-listed, to market surety bonds in West Virginia. As noted above in the finding, we are approving the amendment.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the West Virginia program (Administrative Record Number WV-1446). We only received comments from the U.S. Environmental Protection Agency. Its comments are summarized below.

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that West Virginia proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record Number WV-1446). EPA responded by letter dated December 5, 2005, and stated that it did not identify any apparent inconsistencies with the Clean Water Act or other statutes and regulations under EPA's jurisdiction. EPA went on to say, “Our primary interests concerning reclamation bonds are that they be sufficient to provide restoration of land and water resources in case of bankruptcy and that surety companies which underwrite these bonds remain solvent.” (Administrative Record Number WV-1451). We note that the amendment that we are approving here does not alter the State's approved bonding requirements concerning the amount of bond.

Based on the above findings, we are approving the program amendment West Virginia sent us on October 17, 2005, and amended on November 4, 2005. To implement this decision, we are amending the Federal regulations at 30 CFR part 948, which codify decisions concerning the West Virginia program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

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

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

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

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

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

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

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

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

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is consistent with and no less effective than the Federal bonding regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions used in the Federal bonding regulations.

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

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

EPA is publishing this rule without prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal if adverse comments are filed. This rule is effective on February 28, 2006 without further notice, unless EPA receives adverse comment by January 30, 2006. If EPA receives adverse comment on one or more distinct sections of this rule we will publish a timely withdrawal in the Federal Register indicating which provisions of this rule will become effective and which provisions are being withdrawn due to adverse comment. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on the proposal. Any parties interested in commenting must do so at this time.

Entities potentially affected by this final action include those involved with the production, distribution and sale of gasoline motor fuel or renewable fuels such as ethanol and biodiesel. Regulated categories and entities include:

This table is not intended to be exhaustive, but provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To decide whether your organization might be affected by this action, you should carefully examine today's notice and the existing regulations in 40 CFR part 80. If you have any questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Section 1501 of the Energy Policy Act of 2005 (Energy Act or the Act) amended the Clean Air Act by adding a new provision establishing a national renewable fuel program (also commonly known as the Renewable Fuel Standard program, or RFS program). This program is designed to significantly increase the volume of renewable fuels that are blended into gasoline, starting with calendar year 2006. The Act calls on EPA to issue implementing regulations by August 8, 2006, and provides that if EPA has not adopted such regulations by that date then 2.78 percent of the gasoline sold or dispensed to consumers for calendar year 2006 must be renewable fuel.

EPA does not believe that it can meet the August, 2006, statutory deadline. The issues that need to be resolved in adopting regulations to establish the comprehensive compliance and credit trading program are complex, making it important for EPA to receive input from the various stakeholders. This effort will require significant amounts of time and effort. In addition, a comprehensive set of regulations implementing the RFS would constitute a major rulemaking effort, which typically requires a significant amount of analysis of important issues such as emissions inventory impacts, costs, feasibility, and benefits. This work cannot be completed in the context of a final rulemaking by August, 2006, which must be preceded by a notice and comment process. At the same time, it is critical that industry be informed of how to demonstrate compliance prior to August, 2006, since the program begins in January 2006. The default provisions in the Act are not self explanatory, neither identifying the responsible parties nor the method by which they must demonstrate compliance. EPA is therefore finalizing a limited set of regulations that will interpret and clarify the statutory default provision for 2006. The rule would provide certainty to the parties involved as to their responsibilities for 2006, and will help to provide a smooth transition to the long-term RFS program. This section summarizes the regulatory approach we are taking for 2006.

The Energy Policy Act of 2005 anticipated the possibility that a full RFS program might not be promulgated by the start of 2006, and so provided a default standard applicable to 2006 only. The default standard specifies that 2.78 volume percent of gasoline sold or dispensed to consumers in the U.S. in calendar year 2006 must be renewable fuel. The default standard is applicable if the Agency does not promulgate regulations to implement the full RFS program.

The Agency is interpreting the default standard for 2006 with regulations identifying the liable parties as refiners, importers, and blenders. Compliance with the default standard, however, will be determined on a collective, rather than an individual, basis. Under this approach, refiners, blenders, and importers will together be responsible for meeting the default 2.78 percent standard, and compliance with this standard will be calculated over the pool of gasoline sold to consumers. An individual refiner, blender, or importer will not be responsible for meeting the 2.78 percent standard for the specific gasoline it produces. The Agency will determine compliance following 2006 using data on gasoline and renewable fuel consumption available from the Energy Information Administration, supplemented by other readily available information. If we determine that the default standard has not been met in 2006 on this collective basis, any deficit will be carried forward and applied as an adjustment to the standard for 2007. The regulations implementing the default standard for 2006 will not include any provisions for credit generation or trading, given the collective nature of the obligation.

The rulemaking required to implement the full RFS program, including both program design and the various analyses necessary, will require a substantial effort involving many stakeholders. For instance, it will require the Agency to undertake an analysis of small business impacts under the Small Business Regulatory Enforcement Flexibility Act (SBREFA), provide public notice through a proposed rule and an opportunity for comment including an opportunity for a public hearing, a Regulatory Impact Analysis, and ultimately produce a final rule. This process cannot occur by the time the RFS program begins in January 2006, nor does EPA anticipate that it can be completed by the one year deadline set in the Act. Therefore, we believe the default standard of 2.78 percent will apply to calendar year 2006.

However, the default standard provided in the Act will be difficult for the regulated community to interpret and implement without additional guidance from the Agency. Although the Act provided that the default standard of 2.78 percent would apply in 2006 in the event that the Agency did not promulgate regulations implementing the full renewable fuels program, the default standard provision does not specify the liable parties and the specific nature of their obligation. It also does not discuss compliance mechanisms, reporting requirements, or credit trading. The resulting uncertainty associated with the default standard will create confusion and risks a problematic initial implementation of the RFS program. In the extreme, allowing the default standard to go into effect without EPA guidance could result in significant disruptions in the gasoline and renewable fuel production, blending, and distribution systems.

The goal of today's action is to provide certainty to parties involved in the production and distribution of gasoline and renewable fuels regarding the Agency's approach to determining compliance with the default standard for 2006. Today's action provides a compliance mechanism that is simple and straightforward to implement, explains that the default standard will be met on a collective basis, and can be finalized expeditiously.

In addition to meeting the need for clarity in the limited timeframe available, we believe that the collective approach to compliance for 2006 is reasonable given our expectation that the default standard will be met on a collective basis in 2006 even without imposition of any RFS obligations. Not only has the U.S. Department of Agriculture projected total ethanol production for 2006 to be above 4.0 billion gallons, but the Renewable Fuel Association has indicated that total ethanol production capacity already exceeds 4.1 billion gallons and that additional production capacity currently under construction exceeds 1.2 billion gallons. Production of biodiesel and cellulosic ethanol, as well as imports of ethanol, increase these estimates even further. It's clear that capacity in 2006 will be adequate to produce the renewable fuel needed to meet the 2.78 percent default standard. In addition, sustained high gasoline prices, state bans on MTBE, and continued gasoline demand growth in the face of limited refining capacity all support our conclusion that the default standard for 2006 will be met on a collective basis based on market forces alone. Section III.B provides more details regarding these projections. In the unlikely event that the default standard is not met on a collective basis for 2006, a deficit carryover provision will allow us to make up for any shortfall by adjusting the applicable standard in 2007 commensurately.

The default standard of 2.78 percent provided in the Act applies exclusively to calendar year 2006, and the collective compliance approach we are implementing through today's action will likewise apply only to 2006. For 2007 and beyond, the Agency will not only need to determine and publish the applicable renewable fuel standard for each year, but will also need to specifically identify liable parties, lay out the compliance program including recordkeeping and reporting requirements, and delineate all elements of the credit trading program including how credits are generated, how they can be transferred, and how they can be used for compliance purposes. All these and many other issues impacting the full RFS program will be addressed in a subsequent Agency action and are not discussed in today's direct final rulemaking (DFRM).

This section describes the Act's provision regarding the long-term RFS program, and the default standard that goes into effect automatically in the event that the Agency does not promulgate regulations before August 8, 2006 implementing the long-term program. It also describes the problems that may occur if the Agency does not clarify such things as liable parties, compliance mechanisms, and the role of credit trading under the default standard.

Section 1501 of the Energy Policy Act of 2005 (the Act) describes the renewable fuel program, also known as the Renewable Fuel Standard (RFS) program. This provision was added to the Clean Air Act as Section 211(o), and requires EPA to establish a program to ensure that U.S. gasoline contains specific volumes of renewable fuel for each calendar year 2006 through 2012, as shown in Table II.A-1 below.

In order to ensure the use of the renewable fuel volume specified for each year, the Agency must set a percentage standard for each year representing the percentage of gasoline sold or introduced into commerce which must be renewable fuel. The standard is to be set based on the renewable fuel volumes shown in Table II.A-1 and gasoline volume projections provided by the Energy Information Administration (EIA). The standard for each year must be published in the Federal Register by November 30 of the previous year.

Renewable fuels are defined in the Act primarily on the basis of the feedstock. In general, renewable fuels must be produced from plant or animal products or wastes, as opposed to fossil fuel sources. The Act specifically identifies several types of motor vehicle fuels as being encompassed by the definition, including cellulosic biomass ethanol, waste-derived ethanol, biogas, and biodiesel.

The percentage standard is applicable to refineries, blenders, and/or importers, as appropriate. The percentage standard must be adjusted such that redundant obligations are avoided, and must take into account the fact that small refineries are exempted from the program through 2011. 1 For liable parties, the RFS standard must be met on an annual averaging basis and does not apply on a per-gallon basis.

The Act requires the Agency to promulgate a credit trading program for the RFS program. The credit trading program will serve two purposes. First, it will allow parties who are liable for the standard to comply through the purchase of credits if they cannot or do not wish to blend renewable fuels into gasoline themselves. Second, it will permit renewable fuels that are not blended into gasoline, such as biodiesel and biogas, to participate in the RFS program. The Agency must also determine who can generate credits and under what conditions, how credits may be transferred from one party to another, and in certain cases the appropriate value of credits from different types of renewable fuel.

The Agency envisions promulgation of facility registration, recordkeeping and reporting requirements, enforcement provisions, and various fuel tracking mechanisms to implement the program. These provisions will enable the credit trading program to function properly and will ensure adequate bases for Agency enforcement efforts.

The Act also contains several other provisions that could affect the comprehensive RFS program. For instance, the Energy Information Administration (EIA) is required to determine whether there is a continuing pattern of less than 25 percent of the renewable fuel pool being used in either summer or winter periods. If so, then EPA is required to promulgate regulations establishing a requirement for such minimum seasonal use of renewable fuel. The Act also provides for several kinds of waivers, including one for the initial year of the program in which the Department of Energy (DOE) may recommend that EPA waive the RFS program in whole or in part. Another general waiver provision authorizes EPA to waive the program in whole or in part in response to a petition by a state or states.

Thus, the long-term RFS program envisioned in the Act presents many complex and varied implementation issues. There are a large number of parties that could potentially be affected by the program, including the parties in the gasoline and renewable fuels production and distribution systems. Credit generation, trading and use will be an integral aspect of the program, and this credit program presents many unique issues to address, as most of the blending and use of renewable fuels occurs by parties separate and distinct from the gasoline producers. Limited discussions with stakeholders have served to highlight the complexity. Because of the many disparate interests involved and the large potential impacts of the program, EPA wants to make sure that development of the long-term RFS program is done thoughtfully and with broad stakeholder involvement. In addition, significant actions such as this require us to perform analyses of cost, feasibility, emission inventory impacts, air quality, and impacts on small businesses. Consequently, EPA does not believe that it can meet the August 8, 2006 statutory deadline to issue final comprehensive regulations implementing the full program.

If EPA fails to publish final regulations establishing the full RFS program by August 8, 2006, Section 211(o)(2)(a)(iv) of the amended Clean Air Act provides that “* * * the percentage of renewable fuel in gasoline sold or dispensed to consumers in the United States, on a volume basis, shall be 2.78 percent for calendar year 2006.” However, the provision provides no details on how this requirement is to be implemented.

For instance, the default standard provision does not identify what parties are subject to this statutory requirement. There is a large network of refiners, importers, blenders, distributors, and retailers who arguably could be held responsible to meet this requirement. The statutory language also does not indicate whether the default standard is to be applied to each gallon of gasoline sold or dispensed in 2006, if it is to represent the annual average renewable fuel content for the gasoline sold or dispensed by each responsible party, or if instead it is to be an annual average for all parties acting collectively in the fuel production and distribution system.

Another aspect of the statutory language regarding the default standard that makes its implementation problematic is the absence of any explicit discussion of credit trading. Since producers of gasoline are generally not directly involved in the blending of renewable fuels, credit trading will be a critical component of the comprehensive RFS program. Without credit trading, if each party was individually liable to meet the default standard for their own gasoline, then a liable party would need to ensure that the gasoline it produces actually contains a minimum of 2.78 percent renewable fuel. This would be inconsistent with the direction provided in the Act for the long-term RFS program.

Finally, both the default standard and the annual standard to be met under the long-term program are expressed in the statute in terms of percent renewable fuel in gasoline. Although the definition of renewable fuel includes biodiesel, this particular renewable fuel is not blended into gasoline. While the long-term program will allow for biodiesel integration in the program through credit trading, the default standard provision does not specify the manner in which use of biodiesel is to be counted towards compliance. However, for the purposes of this rule we believe it is appropriate to include biodiesel in the pool of renewable fuel used to determine compliance with the default standard.

The statutory language regarding the default standard for 2006 is ambiguous and problematic in several respects. As a result, starting in January 2006 there could be a great deal of uncertainty among parties whose business involves gasoline or renewable fuels if the Agency does not provide clarity. These parties will not know whether they are liable for the default standard, and if they are liable how to comply with it. The concern over potential individual liability and the lack of a credit trading program could lead some parties to attempt to procure and blend renewable fuels themselves, when under normal circumstances the logistics and economics of doing so would make such activities prohibitive. Others might attempt to ensure that every gallon of gasoline contains at least 2.78 percent renewable fuel. Still others could ignore the requirement entirely in the absence of explicit descriptions of how the Agency would enforce it. All of these activities could significantly disrupt the supply and distribution system, potentially resulting in local supply shortages and/or price spikes, and yet provide no assurance that the desired amount of renewable fuel will be blended into gasoline.

Due to these concerns, the Agency has determined that it would be in the public interest, and would further the goals of the Act, to issue regulations interpreting and clarifying liability, the mechanism of compliance, and the role of credit trading under the 2006 default standard.

This section describes our reasons for believing that a collective compliance approach is a reasonable interpretation of the default standard for the RFS program. We also describe our reasons for believing that the default standard of 2.78 percent will be met in 2006 despite the absence of an RFS standard applicable to individual parties in the fuel production and distribution system.

EPA will identify parties who produce or import gasoline as the parties responsible for implementing the renewable fuel standard for 2006, including refiners, blenders, and importers, with an exemption for refiners that own only small refineries. The default provision itself is ambiguous with respect to liable parties, and could be interpreted as placing ultimate responsibility on a variety of parties in the gasoline production and distribution system, including the retailers who dispense gasoline to consumers. With respect to the long-term renewable fuel program, Congress directed EPA to establish regulations that make the renewable fuel obligation applicable to “refineries, blenders and importers, as appropriate,” [see Clean Air Act section 211(o)(2)(A)(iii)(I)], with an exemption until 2011 for “small refineries” [see Clean Air Act section 211(o)(9)(A)(i)]. Our interpretation of the default standard for 2006 is consistent with these statutory provisions for the long-term renewable fuel program.

EPA believes that refiners, blenders and importers are best positioned to ensure that an appropriate amount of renewable fuel is added to gasoline. Our regulation identifies blenders as a subset of refiners, consistent with our regulatory definition of “refiner” at 40 CFR 80.2(i). 2 In addition, EPA believes that retailers are not in the best position to guarantee the renewable fuel content of the gasoline they sell, and placing this responsibility on the many thousands of retailers, many of whom are small businesses, would likely be very burdensome for them and economically disruptive.

EPA is interpreting the default provision for 2006 as imposing a collective obligation on the regulated parties. This means that if the average volume percent of renewable fuel used in 2006 meets or exceeds 2.78 percent, then the standard is satisfied for all responsible parties, regardless of their individual efforts towards that goal. In light of the fact that industry on average will very likely use more than 2.78 percent renewable fuel in 2006 based solely on market forces (see further discussion below), EPA does not believe that it is necessary or appropriate to interpret the default standard for 2006 as imposing any greater degree of individual responsibility for liable parties. Such a system would require complex credit trading, recordkeeping, and reporting provisions that are not consistent with a default standard that Congress envisioned going into effect without a detailed regulatory program.

EPA is confident that this approach will achieve the statutory objective of ensuring that 2.78 percent of gasoline sold in the United States in 2006 will be renewable fuel, and it will do so in an efficient manner that minimizes costs to industry and consumers. In the unlikely event that EPA's projections of renewable fuel use in 2006 prove inaccurate and the default standard is not met, EPA will adjust the volume obligation for industry in 2007 to reflect any volume deficit represented by the difference between the actual renewable fuel volume percentage in 2006 and 2.78 percent. This effectively means that if there is a deficit in renewable fuel use in 2006, that the applicable percent standard for 2007 could be higher than it would otherwise be. This deficit carryover provision is similar in concept to the provision required for the long-term renewable-fuel program, to allow individuals that cannot satisfy their renewable fuel obligation in a given year to fulfill any deficit in a subsequent year. See Clean Air Act (CAA) Section 211(o)(5)(D).

Thus under today's approach to compliance with the default standard, individual parties will still be considered to be in compliance even if they themselves blended little or no renewables, so long as the 2.78 percent requirement is met collectively nationwide in 2006. The carryover of any volume deficit will ensure that compliance with the default standard is ultimately achieved.

In implementing a collective compliance approach to meeting the default standard in 2006, we are doing so with the expectation that normal business practices will actually result in the default standard being met. While we are including a deficit carryover provision to address the possibility of a failure to meet the default standard in 2006, we have high confidence that such a provision would not have to be used. This section provides our reasons for believing that the default standard of 2.78 percent will be met in 2006 through existing market forces.

Although the full RFS program specifies that EPA should set a percentage standard designed to ensure use of a renewable volume of at least 4.0 billion gallons, the provision describing the default standard directly sets the percentage as 2.78 percent and makes no reference to this volume. As a result, the actual volume of renewable fuel used in gasoline in 2006 could be greater than or less than 4.0 billion gallons when the default standard of 2.78 percent is met. This potential result is illustrated in Figure III.B-1, where the shaded region represents cases in which the default standard of 2.78 percent has been met.

A recent projection of the total gasoline consumption volume for 2006 is 141.6 billion gallons. 3 With this gasoline volume, 3.94 billion gallons of renewable fuel would need to be consumed in order for the default standard of 2.78 percent to be met. For simplicity we have focused in this section on our reasons for believing that at least 4.0 billion gallons of renewable fuel will be sold in 2006.

Of all the renewable fuels that may play a role in meeting the default standard in 2006, ethanol is by far expected to represent the largest fraction. Therefore, our reasons for believing that at least 4.0 billion gallons of renewable fuel will be blended into gasoline in 2006 are based primarily on expectations regarding the production and sale of ethanol. Biodiesel volumes are also quickly rising and serve to provide added assurance that the default standard will be met in 2006. The recent excise tax credit for biodiesel and its value as a lubricity agent in ultra-low sulfur diesel also add to the attractiveness of biodiesel.

There are a variety of sources of information strongly suggesting that ethanol volumes will exceed 4.0 billion gallons in 2006. These include recent production trends, evaluations of expanding ethanol production capacity, and analyses of future demand. Each of these information sources is discussed in this section.

For instance, recent trends indicate that fuel-grade ethanol consumption has steadily increased since it was first introduced into the gasoline market in the early 1980's. The most recent consumption levels are shown in Figure III.B-2.

Some of the recent growth in ethanol consumption appears to have resulted from state bans on the use of the gasoline additive methyl tertiary butyl ether (MTBE). For areas required to use reformulated gasoline (RFG), ethanol often represents the most cost-efficient alternative to MTBE to meet the current RFG oxygen mandate. 4 State bans on MTBE went into effect in 2004 for California, New York, and Connecticut, where approximately one-third of all RFG is sold. The amount of ethanol sold in these three states increased by approximately 1 billion gallons between 2002 and 2004. But ethanol use has increased steadily over the last five years in other RFG areas and in conventional gasoline as well for reasons not associated with MTBE bans. We believe that these increases in ethanol use are due primarily to the beneficial economics of blending ethanol into gasoline as gasoline prices have risen. If the market forces that led to the rising demand for ethanol over the last several years continue into the future, ethanol consumption could easily reach 4.0 billion gallons in 2006. 5

In addition to ethanol consumption trends, import trends also suggest that supply of ethanol will increase into 2006. According to EIA, imports of ethanol increased significantly in 2004, totaling nearly 150 million gallons. 6 This volume represents a more than ten-fold increase from each of the previous two years.

Biodiesel production has also risen significantly in the last several years, and further supports our belief that total renewable fuel volumes in 2006 will exceed 4.0 billion gallons. Figure III.B-3 shows the volumes of biodiesel production in the U.S. in recent years.

If the trends shown in Figure III.B-3 continue into 2006, there could be as much as 35 million gallons of biodiesel produced. If the ethanol import volumes of 150 million gallons per year continue into 2006, then an additional total of nearly 0.2 billion gallons of renewable fuel may be consumed in the U.S. in 2006 in addition to the ethanol production estimates. Thus the total projected volume of renewable fuel consumed in 2006 would be about 4.2 billion gallons instead of the 4.0 billion gallons we estimated above.

An evaluation of expanding ethanol production capacity also points towards 2006 ethanol volumes easily exceeding 4 billion gallons. For instance, Table III.B-1 shows data from the Renewable Fuels Association for existing and underway ethanol production capacity in the U.S. for the past several years. 7

Two other analyses support our expectation that 2006 ethanol production volumes will exceed 4 billion gallons. The EIA made its own projections of ethanol production in 2006 using its National Energy Modeling System, an annual forecasting tool. 9 In addition to evaluating various versions of the RFS program prior to enactment of the Energy Policy Act of 2005, the EIA also modeled a case in which no RFS program existed. In that event, EIA projected that total annual ethanol consumption in 2006 would be 4.6 billion gallons.

The U.S. Department of Agriculture has also made projections of ethanol production under a scenario in which no RFS program is assumed. Their most recent “Baseline Projections” apply to all years between 2006 and 2014, and are based on an analysis of the major forces and uncertainties affecting future agricultural markets. 10 This analysis included such factors as trade, farm income, food prices, weather, international developments, and other macroeconomic conditions affecting the production of corn and other crops used for the production of ethanol. In association with this analysis, total ethanol production in 2006 was projected to be 4.18 billion gallons. Again, considering ethanol imports and biodiesel production, actual renewable fuel consumption could be as high as 4.4 billion gallons in this scenario.

There are other important, though less quantitative, indicators of growth in the ethanol industry. For instance, in response to increasing trading volume, the Chicago Board of Trade recently announced that it is expanding the number of ethanol futures contracts available. 11 Also, the New York Mercantile Exchange will now offer a New York Harbor ethanol blendstock (RBOB) gasoline futures contract that will replace the MTBE-blended gasoline based contract.

In addition to simple volume projections from past years, we also believe that ethanol production will exceed 4 billion gallons in 2006 due to the favorable economics currently associated with it. Historically the 51 ¢/gal federal excise tax credit and various state and local credits have provided sufficient economic incentive to overcome the higher production costs of ethanol compared to the production costs of the gasoline it displaces. As a result, demand for ethanol has steadily increased over the years, aided by the RFG oxy mandate and state MTBE bans. However, the increase in crude oil prices in recent years has dramatically increased the production cost of gasoline. Although the price of natural gas used in ethanol production has also risen in recent years, ethanol production costs have remained relatively stable in comparison to gasoline and thus the economic incentive to blend ethanol into gasoline has risen significantly. A similar incentive also now exists for biodiesel in the wake of its recently enacted excise tax subsidy. As long as crude prices remain high, this incentive to blend ethanol and biodiesel into conventional fuels is anticipated to continue. Other factors that have historically been important such as octane, and even the RFG oxygen mandate, are expected to be much less important in 2006. Ethanol's value simply as a extender for gasoline volume is sufficient to keep demand high. Also, with refineries operating at or near capacity and the demand for gasoline increasing in the U.S., the phaseout of MTBE could result in a potential reduction of gasoline volume. We expect that many refiners will use ethanol to replace the lost octane and volume associated with the phaseout of MTBE.

As a result of these favorable economics, despite the removal of the oxy mandate for RFG as required by the Act, we do not anticipate any overall reduction in demand for ethanol next year. The Act provides for immediate elimination in California of the statutory requirement for oxygen in RFG, and 270 days after enactment for the rest of the country. 12 Although the elimination of the oxygen requirement has the potential to reduce ethanol use in some RFG areas, given the strong economic incentive to blend ethanol, its use is expected to rise in others, offsetting any impact. State-mandated ethanol requirements will only solidify this conclusion. Currently, three states mandate the use of ethanol in all gasoline through a state renewable fuels standard: Minnesota, Hawaii, and Montana. Other states may follow in the future—currently state legislators in Illinois, Missouri and Michigan have been discussing introducing similar legislation in those states.

For calendar year 2006, we are promulgating a collective approach to compliance that implements the default 2.78 percent standard. This section describes our 2006 program in detail, including the definition of liable parties under the standard and the mechanism for addressing any potential failure to meet the 2.78 percent collectively

For calendar year 2006, the Act states that if EPA fails to issue comprehensive regulations establishing the renewable fuel program then “the percentage of renewable fuel in gasoline sold or dispensed to consumers in the United States on a volume basis, shall be 2.78 percent for calendar year 2006.” The default standard goes into effect independently; that is, no regulations are required to implement the default standard. EPA believes, however, that regulations are nevertheless necessary to clarify how the standard is to be interpreted and implemented.

While the Act provides that the renewable fuel obligation determined pursuant to the long-term RFS program shall “be applicable to refineries, blenders, and importers, as appropriate,” the Act does not provide this level of specificity for the default RFS standard for 2006. We have determined that compliance with the default standard will be determined based on the efforts of the collective refining, importing and blending industries. Small refineries will be excluded from liability in the 2006 collective compliance determination. However, since the statutory language regarding the default standard indicates that compliance should be based on gasoline sold or dispensed to consumers in the United States, the gasoline produced by small refiners as well as the ethanol used in gasoline produced by small refineries will be counted in performing the compliance calculations.

The regulations will provide that refiners, blenders and importers have collectively met the standard if the volume of renewable fuels used in gasoline sold in the U.S. in calendar year 2006 is equal to or greater than 2.78 percent. Thus if the standard is achieved collectively, then every individual refiner, blender or importer will be in compliance with the standard. This means that an individual refiner may use less than 2.78 percent in the gasoline it refines, imports or blends, but will not be in violation of the standard as long as the 2.78 percent is met or exceeded in the aggregate by all parties in these industries. If the 2.78 percent default standard is not met collectively, then our regulations provide for a deficit carryover to 2007 that would apply collectively to all liable parties in 2007. There will be no other consequence for collective failure to meet the 2.78 percent standard in 2006.

This section describes the activities that will be required of liable parties under the default standard, the types of renewable fuels that will be counted, and the mechanism through which the Agency will determine compliance with the default standard for 2006.

For the collective compliance determination, EPA will calculate the actual volume percent of renewable fuel for 2006 using gasoline and ethanol consumption volumes reported by EIA for 2006, supplemented by readily available information on consumption volumes for other renewable fuels. Thus, individual refiners, importers and blenders will not be required to demonstrate compliance with the default standard. EPA will evaluate whether the default standard has been met collectively by use of readily available information. Individual companies will not be required to keep records of volumes of ethanol purchased for purposes of compliance with this rule.

Under our regulations, EPA will calculate the total volume of renewable fuel to account for all ethanol and non-ethanol renewable fuels used in motor fuel in 2006, including ethanol made from cellulosic or waste feedstocks and biodiesel. We will use information on the volumes of these renewable fuels that can be obtained from available sources. We will count one gallon of cellulosic biomass or waste-derived ethanol as 2.5 gallons of renewable fuel, following the prescription in Section 211(o)(4) of the Clean Air Act as amended by the Energy Policy Act of 2005.

Although the statutory language regarding the default standard indicates that compliance should be based on renewable fuel in gasoline, we believe that biodiesel should also be included even though it is not blended into gasoline. Not only is biodiesel included within the definition of renewable fuel, but in the context of the long-term RFS program biodiesel can be counted as a component of the renewable fuel pool for use in compliance calculations even though the RFS standard is also based on the percentage use of renewable fuel in gasoline. We will count one gallon of biodiesel as one gallon of renewable fuel in the context of 2006 compliance with the default standard. We will revisit the credit value of biodiesel and other renewable fuels in the context of the comprehensive rulemaking implementing the full RFS program, and our approach in this rulemaking is not intended to establish a precedent for our decision there.

Our regulations provide that the default standard has been met if the volume percent of renewable fuel used in gasoline sold in the U.S. in 2006 is collectively greater than or equal to 2.78 percent. While small refineries are not considered liable parties under the collective compliance approach, we will include the volume of gasoline produced by small refineries as well as the amount of ethanol used in such gasoline in determining whether the 2.78 percent default standard has been met. We believe that including volumes of gasoline and ethanol from small refiners is consistent with the plain language of the default standard, which calls for 2.78 percent renewable fuel in “gasoline sold or dispensed to consumers.”

We will primarily use data published by EIA in determining compliance with the default standard. We have identified the Monthly Energy Review as the most appropriate source. 13 Ethanol is available in Table 10.1, 14 while gasoline volumes are available under “Product Supplied” in Table 3.4. Volumes of other renewable fuels that may not be available through EIA publications will be estimated based on information from other readily available and reliable sources.

If the default standard has been met on a collective basis, all refiners, importers and blenders will be deemed to be in compliance whether or not they individually used 2.78 percent ethanol in gasoline. If the default standard has not been met on a collective basis, we will carry forward an appropriate volume of renewable fuel to the 2007 volume obligation which will then be implemented and enforced under the full RFS rule. The additional renewable fuel that is carried forward is termed the “deficit carryover”. In such an instance, no individual refiner, blender or importer is held liable for the default 2006 standard not being met. Rather, the RFS standard for 2007 will be adjusted to account for any deficit carryover.

Today's rule will provide that a deficit carryover will be required if the 2.78 percent standard is not met. The size of the deficit will be determined with respect to the 2.78 percent default standard. As a result, the minimum necessary volume of renewable fuel consumed in 2006 and the size of any deficit carryover volume will be dependent upon the volume of gasoline consumed. The following examples illustrate how the standard will work, and how the deficit carryover will be calculated.

Although the Act requires EPA to publish the standard applicable to 2007 by November 30, 2006, the data on actual gasoline and renewable fuel volumes consumed in all of 2006 will not be available at that time. As a result, the addition of any deficit carryover to 2007, if one is necessary, could occur no sooner than early 2007. Under these circumstances, we expect that we will adjust the 2007 standard to account for a carryover from 2006, if necessary, at such time as the data for 2006 are available and in a manner consistent with the regulations that will apply to 2007.

The Act provides for the regulations implementing the long term RFS to allow for credit generation and trading, and we will develop a credit trading program under the full RFS program rule. Today's rule allows for the industry to comply with the default standard on a collective basis, providing no basis for setting set up an individual credit generation and trading program, as will be done for the long term RFS program. For the default standard in 2006, companies do not have an individual standard to meet, so there is no basis for determining that they have done more or less than is required of them individually, which is the basis for generating or needing credits. Therefore, under today's rule, individual companies that exceed the 2.78 percent default standard do not generate credits, and there are no credits to trade or sell to other companies. Also, no credits are generated that can be used toward compliance with RFS requirements after 2006.

Under Executive Order 12866, [58 Federal Register 51735 (October 4, 1993)] the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “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 action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. There would not be a burden on liable parties because the Agency would determine compliance immediately following 2006 using data on gasoline and renewable fuel consumption available from the Energy Information Administration and other information that may be readily available.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. EPA proposes that the default provision for 2006 be interpreted as imposing a collective obligation on the regulated parties. This means that if the average volume percent of renewable fuel used in 2006 meets or exceeds 2.78 percent, then the standard is satisfied for all responsible parties, regardless of their individual efforts towards that goal. In light of the fact that refiners, blenders, and importers would together be responsible for meeting the default 2.78 percent standard and industry on average will very likely use more than 2.78 percent renewable fuel in 2006 based solely on market forces, there will be no significant economic impact on small entities. No individual refiner, blender, or importer would be responsible for establishing compliance with the default standard for the specific gasoline it produces in 2006, and any deficit carryover to 2007 would be minimal if there is one at all. We continue to be interested in the potential impacts of our proposed rules on small entities and welcome comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA 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 EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

This rule contains no federal mandates for state, local, or tribal governments as defined by the provisions of Title II of the UMRA. The rule imposes no enforceable duties on any of these governmental entities. Nothing in the rule would significantly or uniquely affect small governments.

EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for the private sector in any one year. EPA has estimated that renewable fuel use in 2006 will be sufficient to meet the default standard of 2.78 percent. Therefore, individual refiners, blenders, and importers are already on track to meet rule obligations through normal market-driven incentives. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The rule reflects a nationwide program that does not impose directives specific to any particular State or region. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.”

This proposed rule does not have tribal implications as specified in Executive Order 13175. This rule would be implemented at the Federal level and collectively apply to refiners, blenders, and importers. EPA expects these entities to meet the standards on a collective basis in 2006 even without imposition of any RFS obligations on any individual party. Thus, Executive Order 13175 does not apply to this rule.

Executive Order 13045: “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA 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.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposal is not subject to Executive Order 13045 because it is not economically significant and is not based on health or safety risks.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. We believe that the normal practices of liable parties will result in the default RFS standard being met collectively.

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

This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

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). This rule will be effective February 28, 2006.

Statutory authority for the rules finalized today can be found in 42 U.S.C. 7401-7671q.

On July 16, 2004, NHTSA published a final rule that amended 49 CFR part 572 by adding a new subpart S describing a weighted version of the current Hybrid III 6-year-old child size (HIII-6C) dummy (69 FR 42595; NHTSA Docket 18075). The weighted dummy is used in Federal Motor Vehicle Safety Standard (FMVSS) No. 213 (49 CFR 571.213) to test the structural integrity of child restraints, manufactured on or after August 1, 2005, that are recommended for use by children weighing 50 to 65 lb.

FTSS petitioned for reconsideration of the following aspects of the final rule: the force corridor for the thorax impact certification test, and the average force at 45 degrees for the torso flexion certification test; the material specification on drawing number 167-2020 and the weight tolerances on that drawing; and the material specification on drawing number 167-3010 and the weight tolerances on that drawing. Each of these is discussed below.

FTSS provided the results for six additional thorax impact tests using a Hybrid III 6-Year-Old Weighted Child Test Dummy (HIII-6CW). The petition requested that the agency “pool this data with the existing data to produce a larger sample size to calculate the average peak pendulum force corridor and modify the rule accordingly.” (The data are provided in Table 1 of the Appendix to this document.)

FTSS also provided an additional seventeen torso flexion response tests. FTSS again requested that these “additional test data be pooled with the existing agency data to calculate the appropriate average Force at 45 degrees.”

NHTSA is denying the first suggested amendment concerning the thorax impact certification test, but is granting the request to adjust the torso flexion test corridor.

In its petition, FTSS provided the results from six additional thorax impact tests using a HIII-6CW. The petition requested that the agency “pool this data with the existing data to produce a larger sample size to calculate the average peak pendulum force corridor and modify the rule accordingly.” (The data are provided in Table 1 of the Appendix to this document.)

NHTSA analyzed the FTSS data from the thorax impact tests and performed a statistical analysis with the additional data points, comparing it to the data set published in the final rule. It was observed that with these additional 6 FTSS data points, the average peak pendulum force would decrease by only 3.7 Newtons (N). The data set used in the final rule produced an average peak pendulum force of 1,321.6 N. When combined with the FTSS data, the average peak pendulum force is 1,317.9 N, or a decrease of only 0.27% in the average peak force.

NHTSA is denying the request to modify the peak pendulum force corridor. FTSS did not show how changing the average peak force by 0.27% would have any effect on dummy performance. Furthermore, all the tests provided by FTSS fell comfortably within the final rule corridor of 1,205-1,435 N. Accordingly, the agency does not believe that the peak force corridor needs to be changed at this point in time.

With regard to the additional torso flexion response data (see Table 2 of the Appendix), the FTSS data, combined with the data set published in the final rule, results in an average force of 95.2 N at 45 degrees of flexion. This value is slightly higher than that of the value provided in the Hybrid III 6-year-old weighted child test dummy final rule, which provided an average force of 88.6 N at 45 degrees of flexion (49 CFR 572.165(b)(1)). The standard deviation of the combined data set would be reduced from the data set published in the final rule, 14.2 N compared to 15.6 N. If the new average responses were accepted and the same tolerance of +/-20 N were applied, then the force at the 45-degree corridor would change from 68.6 N-108.6 N (as published in the final rule) to 72.5 N-112.5 N.

Such a change would reduce the number of samples that did not meet the corridor at the upper end of the limit from five failures to two failures out of the 29 total samples. However, making this change in the corridor would result in three other samples not meeting the new requirement at the low end of the limit (test numbers DATD-97-10, -11, and -12 would no longer pass the new requirement). FTSS provided data showing that the dummies used in their 13 tests met the requirements set forth in 49 CFR part 572, Subpart N (“Six-year-old child test dummy, beta version”) prior to adding the weights, indicating the overall acceptability of the dummies. After considering the available information, we have decided to adjust slightly the torso flexion test corridor from 88.6 N +/−20 N to 88.6 N +/−25 N. This slight adjustment in the torso flexion test corridor results in all 29 test samples being compliant with the torso flexion force at 45 degrees.

FTSS noted that NHTSA drawing number 167-2020 specifies a material, Tungsten Alloy CMW 2000, which is a proprietary brand name of Contacts Metals Welding (CMW) Inc. FTSS requested the addition of “or equivalent” to the material specification “to allow for use of alternate suppliers of Tungsten Alloy.” FTSS also noted, “NHTSA has specified the weight to be 2.54 lb, but has specified no tolerance.” FTSS recommended applying a weight tolerance, which is computed by calculating the variance of the minimum and maximum dimensions and using the density of the Tungsten alloy. FTSS suggested a tolerance of +/−0.11 lb.

NHTSA agrees that, with regard to the recommendation to add “or equivalent” to the currently specified Tungsten Alloy GMW 2000, it is not preferable to specify one specific source for the raw materials needed to produce this item. The agency will therefore add the word “reference” to the currently specified Tungsten Alloy GMW 2000 located in the material specification section of drawing 167-2020. NHTSA will use the word “reference” rather than “or equivalent” to maintain consistency with the material specification generally used in NHTSA drawings.

With regard to the recommendation to apply a weight tolerance to drawing 167-2020, the agency agrees that a weight tolerance is desirable and concurs with the approach FTSS has taken in calculating this tolerance. The agency confirmed FTSS's calculation and will change the weight note to read as follows: “Weight: 2.54 +/−0.11 lb.”

FTSS stated that a proprietary material has also been specified in this drawing. FTSS again suggested that a generic material specification would be more desirable.

In addition, FTSS noted “NHTSA has specified the weight to be 4.88 lbs, but has specified no tolerance.” FTSS recommended applying a weight tolerance, which, similar to the approach taken above, was computed by calculating the variance of the minimum and maximum dimensions and using the density of the Tungsten alloy. FTSS suggested a tolerance of +/−0.17 lb.

NHTSA agrees that a generic material specification is desirable. Therefore, the word “reference” will be added to the material specification in drawing number 167-3010. NHTSA further agrees that a weight tolerance is desirable and concurs with the approach suggested by the petitioner. Thus, the weight note on drawing number 167-3010 is changed to read: “Weight: 4.88 +/−0.17 lb.”

NHTSA has considered the impact of this rule under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under E.O. 12866, “Regulatory Planning and Review.” This action has been determined to be “nonsignificant” under the Department of Transportation's regulatory policies and procedures. The agency concludes that the impacts of the amendments are so minimal that preparation of a full regulatory evaluation is not required. The rule will not impose any new requirements or costs on manufacturers, but instead will slightly widen the torso flexion test corridor as well as make minor changes to two drawings of the dummy.

NHTSA has considered the impacts of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). I certify that the amendment will not have a significant economic impact on a substantial number of small entities. The rule will not impose any new requirements or costs on manufacturers.

This document does not establish any new information collection requirements.

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

The agency has analyzed this rulemaking action in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The rule will have no substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.

This rule does not have any retroactive effect. Under section 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. Section 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs us to use voluntary consensus standards in regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The agency searched for, but did not find any voluntary consensus standards relevant to this response to FTSS's petition for reconsideration.

This final rule will not impose any unfunded mandates under the Unfunded Mandates Reform Act of 1995. This rule will not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Anyone is able to search the electronic form of all comments or petitions 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 .