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

The Board approved requests by the Reserve Banks to increase by 25 basis points the primary credit rate in effect at each of the twelve Federal Reserve Banks, thereby increasing from 2.75 percent to 3.00 percent the rate that each Reserve Bank charges for extensions of primary credit. As a result of the Board's action on the primary credit rate, the rate that each Reserve Bank charges for extensions of secondary credit automatically increased from 3.25 percent to 3.50 percent under the secondary credit rate formula. The final amendments to Regulation A reflect these rate changes.

The 25-basis-point increase in the primary credit rate was associated with a similar increase in the target for the federal funds rate (from 1.75 percent to 2.00 percent) approved by the Federal Open Market Committee (Committee) and announced at the same time. A press release announcing these actions indicated that:

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

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

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

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or special condition number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE213.” The postcard will be date stamped and returned to the commenter.

On February 11, 2002, Thielert Aircraft Engines applied for a supplemental type certificate for the Cessna Model 172 series airplanes. The supplemental type certificate will allow Thielert Aircraft Engines to install a Thielert Aircraft engine (TAE 125-01 aircraft diesel engine (ADE)) that is equipped with an electronic engine control system with full authority capability in these airplanes.

Under the provisions of 14 CFR, part 21, § 21.101, Thielert Aircraft Engines must show that the Cessna Model 172 meets the applicable provisions of the original certification basis of the Cessna Model 172, as listed on Type Certificate No. 3A12, issued on November 4, 1955; exemptions, if any; and the special conditions adopted by this rulemaking action. The Cessna Model 172 was originally certified under part 3 of the Civil Air Regulations.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , CAR 3; 14 CFR, part 23) do not contain adequate or appropriate safety standards for the Cessna 172 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the certification basis for the supplemental 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 models that are listed on the same type certificate to incorporate the same novel or unusual design features, the special conditions would also apply under the provisions of § 21.101.

The Thielert Aircraft Engines modified Cessna Model 172 will incorporate a novel or unusual design feature, an engine that includes an electronic control system with full authority digital engine control (FADEC) capability.

Many advanced electronic systems are prone to either upsets or damage, or both, at energy levels lower than analog systems. The increasing use of high power radio frequency emitters mandates requirements for improved high intensity radiated fields (HIRF) protection for electrical and electronic equipment. Since the electronic engine control system used on the Thielert Aircraft Engines modified Cessna Model 172 will perform critical functions, provisions for protection from the effects of HIRF should be considered and, if necessary, incorporated into the airplane design data. The FAA policy contained in Notice 8110.71, dated April 2, 1998, establishes the HIRF energy levels that airplanes will be exposed to in service. The guidelines set forth in this notice are the result of an Aircraft Certification Service review of existing policy on HIRF, in light of the ongoing work of the Aviation Rulemaking Advisory Committee (ARAC) Electromagnetic Effects Harmonization Working Group (EEHWG). The EEHWG adopted a set of HIRF environment levels in November 1997 that were agreed upon by the FAA, the Joint Aviation Authorities (JAA), and industry participants. As a result, the HIRF environments in this notice reflect the environment levels recommended by this working group. This notice states that a FADEC is an example of a system that should address the HIRF environments.

Even though the control system will be certificated as part of the engine, the installation of an engine with an electronic control system requires evaluation due to the possible effects on or by other airplane systems ( e.g. , radio interference with other airplane electronic systems, shared engine and airplane power sources). The regulatory requirements in 14 CFR, part 23 for evaluating the installation of complex systems, including electronic systems, are contained in § 23.1309. However, when § 23.1309 was developed, the use of electronic control systems for engines was not envisioned; therefore, the § 23.1309 requirements were not applicable to systems certificated as part of the engine (reference § 23.1309(f)(1)). Also, electronic control systems often require inputs from airplane data and power sources and outputs to other airplane systems ( e.g. , automated cockpit powerplant controls such as mixture setting). Although the parts of the system that are not certificated with the engine could be evaluated using the criteria of § 23.1309, the integral nature of systems such as these makes it unfeasible to evaluate the airplane portion of the system without including the engine portion of the system. However, § 23.1309(f)(1) again prevents complete evaluation of the installed airplane system since evaluation of the engine system's effects is not required.

Therefore, special conditions are proposed for the Thielert Aircraft Engines modified Cessna Model 172 airplane to provide HIRF protection and to evaluate the installation of the electronic engine control system for compliance with the requirements of § 23.1309(a) through (e) at Amendment 23-49.

As discussed above, these special conditions are applicable to the Thielert Aircraft Engines modified Cessna Model 172. Should Thielert Aircraft Engines apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate as the Thielert Aircraft Engines modified Cessna Model 172 to incorporate the same novel or unusual design features, 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, the Cessna Model 172 K, L, M, N, P, R, and S series airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register. However the FAA finds that good cause exists to make these special conditions effective upon issuance.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for Thielert Aircraft Engines modified Cessna Model 172 airplanes.

1. High Intensity Radiated Fields (HIRF) Protection. In showing compliance with 14 CFR part 21 and the airworthiness requirements of 14 CFR part 23, protection against hazards caused by exposure to HIRF fields for the full authority digital engine control system, which performs critical functions, must be considered. To prevent this occurrence, the electronic engine control system must be designed and installed to ensure that the operation and operational capabilities of this critical system are not adversely affected when the airplane is exposed to high energy radio fields.

At this time, the FAA and other airworthiness authorities are unable to precisely define or control the HIRF energy level to which the airplane will be exposed in service; therefore, the FAA hereby defines two acceptable interim methods for complying with the requirement for protection of systems that perform critical functions.

(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 external HIRF threat environment defined in the following table:

(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 peak electrical strength, without the benefit of airplane structural shielding, in the frequency range of 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. Data used for engine certification may be used, when appropriate, for airplane certification.

2. Electronic Engine Control System. The installation of the electronic engine control system must comply with the requirements of § 23.1309(a) through (e) at Amendment 23-49. The intent of this requirement is not to re-evaluate the inherent hardware reliability of the control itself, but rather determine the effects, including environmental effects addressed in § 23.1309(e), on the airplane systems and engine control system when installing the control on the airplane. When appropriate, engine certification data may be used when showing compliance with this requirement.

This amendment to 14 CFR 71 modifies the Class E airspace area extending upward from 700 feet above the surface at Boone, IA. An examination of controlled airspace for Boone Municipal Airport revealed it does not comply with FAA Order 7400.2E, Procedures for Handling Airspace Matters, and FAA Order 8260.19C, Flight Procedures and Airspace, criteria for 700 feet AGL airspace required to protect aircraft executing SIAPs. The review also identified noncompliance with FAA Order 7400.2E criteria for diverse departures from the airport and other discrepancies in the legal description of the airspace area.

This amendment modifies the airspace area from a 6.6-mile radius to an 6.5-mile radius of Boone Municipal Airport, adds northeast and southeast extensions to the airspace area, modifies the northwest extension and brings the legal description of the Boone, IA Class E airspace area into compliance with FAA Orders 7400.2E and 8260.19C. This area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9M, Airspace Designations and Reporting Points, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-19576/Airspace Docket No. 04-ACE-66.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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.

Section 5382 of the Internal Revenue Code of 1986 (26 U.S.C. 5382) provides that proper cellar treatment of natural wine constitutes those practices and procedures that produce a finished product acceptable in good commercial practice. Section 5382 also authorizes the Secretary of the Treasury to prescribe, by regulation, limitations on the use of methods and materials for clarifying, stabilizing, preserving, fermenting, and otherwise correcting wine and juice.

The regulations administered by the Alcohol and Tobacco Tax and Trade Bureau (TTB) include, in 27 CFR part 24, provisions that implement these statutory requirements. Section 24.246 (27 CFR 24.246) includes a table that lists materials authorized for the treatment of wine and juice; § 24.247 (27 CFR 24.247) includes a table that lists materials authorized for the treatment of distilling material; and § 24.248 (27 CFR 24.248) includes a table that lists processes authorized for the treatment of wine, juice, and distilling materials.

Industry members wishing to experiment with, or commercially use, a treating material or process not specifically authorized in part 24 may file an application with TTB requesting authorization to use the new material or process. Standards regarding the experimental use of a new material or process are set forth in § 24.249 (27 CFR 24.249). The provisions covering applications for commercial use of a new material or process are contained in § 24.250 (27 CFR 24.250). Applications for commercial use must show that the proposed material or process is a cellar treatment consistent with good commercial practice. In general, good commercial practices include those practices that address the reasonable technological or practical need to enhance the keeping, stability, or other qualities of the wine and that achieve the winemaker's desired effect, without creating an erroneous impression about the wine's character and composition.

Over the past few years, TTB has received and approved applications for experimental or commercial use of the wine and juice treating materials and processes discussed below. We believe we have accumulated enough analytical data or other information to add them to the list of materials and processes for wine and juice in §§ 24.246 and 24.248. Since we have already administratively approved the use of these materials and processes for some industry members for bottling and sale of wine under § 24.249(e), or for commercial use under § 24.250, we believe it is appropriate to adopt these additions to the lists as a temporary rule. In this way, all domestic winemakers will be able to use these treatments in the production of standard wine, pending final regulatory action, without first having to file an application under § 24.249 or § 24.250. At the same time, we are soliciting comments from all interested persons on our position that, based on the information set forth below, the use of each of these materials or processes is consistent with good commercial practice.

After we analyze any comments received in response to this notice, we will issue a final rule. Unless we receive evidence contradicting our stated position, we will adopt the temporary additions to the lists in the final rule. On the other hand, if we receive comments that persuade us that the use of a particular material or process is not consistent with good commercial practice, we will remove it from the appropriate list in our final rule. In such a case, all letters approving the experimental or commercial use of the material or process will be superseded as a result and will be rescinded by operation of law on the effective date of the final rule. Wines produced using such materials or processes that are rescinded based upon this rulemaking may nevertheless be labeled as if the materials or processes were authorized, provided they were produced prior to the date of supercession.

An industry member applied to use acetaldehyde in grape juice to stabilize color in red grape concentrate. Acetaldehyde is a natural byproduct of yeast metabolism. A normal component of wine and other fermented products, it occurs naturally in California table wines at levels between 32 and 91 mg/L. The Food and Drug Administration (FDA) regulations at 21 CFR 182.60 state that acetaldehyde, when used as a synthetic flavoring substance and adjuvant, is generally recognized as safe (GRAS) with no established regulatory limit other than good manufacturing practice.

Acetaldehyde reacts with grape pigments (anthocyanins) and catechins (proanthocyanidins) to form a more stable color. According to the industry member, wines containing color-stabilized concentrate have an extended shelf life compared to wines containing standard concentrate. The industry member stated that any residual acetaldehyde is removed during the concentration process through the use of evaporators so that the finished concentrate will have no detectable level of acetaldehyde.

The industry member submitted to the TTB Laboratory two 750-milliliter samples of wine, one containing the treated grape concentrate (comprising 1% of the total volume of the sample) and one (the base) without the concentrate. The Laboratory found that the wine containing the concentrate was a darker, more opaque red than the base. The amount of acetaldehyde was slightly lower in the sample with the concentrate, but in other instrumental analyses the two samples were similar.

Consequently, TTB approved the commercial use of acetaldehyde in juice at a level of 300 mg/L to stabilize color in red grape concentrate. TTB gave this approval pending adoption of acetaldehyde as a treating material through the rulemaking process.

TTB is amending the list in § 24.246 to allow the use of acetaldehyde in juice prior to concentration at the rate of 300 mg/L, provided that no residual acetaldehyde remains in the finished concentrate.

An industry member applied to use calcium pantothenate as a yeast nutrient in the production of apple wine. Calcium pantothenate is a salt of pantothenic acid, one of the vitamins of the B complex. The FDA regulations at 21 CFR 184.1212 state that calcium pantothenate is GRAS and may be used as a direct human food ingredient at a level consistent with current good commercial practice. Along with its application, the industry member submitted a material safety data sheet from the manufacturer and an excerpt from the Merck Index describing calcium pantothenate's chemical composition.

TTB approved the industry member's request to use calcium pantothenate for the production of apple wine at the rate of 0.1 lb. per 25,000 gallons of juice. TTB gave this approval pending final rulemaking action on the use of calcium pantothenate. This temporary rule document adds this material to the list in § 24.246.

TTB has approved several requests from wineries to use a mixed carbohydrase (pectinase, cellulase, hemicellulse) enzyme preparation derived from a nonpathogenic and nontoxigenic strain of Aspergilius aculeatus to facilitate the separation of juice from the fruit. According to technical information supplied by the enzyme's manufacturer, it disintegrates fruit cell walls, resulting in a quicker and more complete release of juice. A supplier of the enzyme stated that it lowers viscosity, improves clarification and filterability, and maximizes yield. The supplier also stated that it allows for more complete color extraction in red grape juice.

The FDA accepted a GRAS affirmation petition for this enzyme preparation from the manufacturer in 1985. In a December 19, 1996, letter regarding the status of the GRAS affirmation petition, the FDA stated that it had no information indicating that the enzyme preparation is not GRAS. Based on the above information, TTB is adding this mixed carbohydrase enzyme preparation derived from Aspergilius aculeatus to the list of authorized enzymatic activities found in § 24.246 authorized materials table.

An industry member applied to use a cellulase enzyme preparation derived from Tricoderma longibrachiatu to facilitate wine clarification and filtering. The enzyme, cellulase, catalyzes the endohydrolysis of 1, 4-beta-glycosidic linkages in cellulose. According to the technical data sheet issued by the enzyme's manufacturer, the preparation is best suited to treat difficult-to-filter wines, such as those produced from Botrytis-infected grapes. The FDA regulations at 21 CFR 184.1250 state that cellulase enzyme preparations derived from Trichoderma longibrachiatu are GRAS for use as a direct human food ingredient and may be used in amounts not exceeding current good manufacturing practice.

TTB approved the industry member's request to use this enzyme preparation at the rate of 1 to 3 grams per hectoliter (g/hl), the usage rate recommended by the manufacturer. TTB gave this approval pending final rulemaking action on the use of this material.

We are amending the list of authorized enzymatic activities in the § 24.246 authorized materials table by adding the use of this cellulase enzyme preparation, at a rate not to exceed 3 g/hl, to facilitate wine clarification and filtering.

Copper sulfate is currently listed in § 24.246 for use in removing hydrogen sulfide and other mercaptans from wine. These chemical compounds can cause off odors in wine that are often compared to those of rotten egg and skunk. The quantity of added copper sulfate (calculated as copper) may not exceed 0.5 part copper per million parts of wine (0.5 mg/L), with the residual level of copper not to exceed 0.5 part per million (0.5 mg/L). This residual level was established by T.D. ATF-350 ( See 58 FR 52231, October 7, 1993), which cited studies showing that wine treated with copper sulfate is stable with residual copper levels at 0.5 part per million or less.

A number of wineries applied to TTB to use copper sulfate at a rate of 6 parts per million for specific vintages due to rainy harvest conditions that required them to spray elevated levels of sulfur on their grapes to prevent mold and mildew. These wineries stated that the residual sulfur on the grapes hindered fermentation and caused off odors, problems they were sometimes unable to correct with the approved level of copper sulfate. TTB approved these applications to use up to 6 parts per million for the vintages requested, provided that the residual level of copper sulfate in the wine did not exceed 0.5 part per million. Samples of wine treated with this higher level of copper sulfate were submitted to the TTB Laboratory and found to have residual copper levels below 0.5 part per million.

New technologies developed in recent years enable winemakers to more easily remove added copper from wine. The use of the metal reducing matrix sheet discussed below is an example of one such new technology. Because winemakers occasionally need to use a higher level of copper sulfate, and because new technologies allow winemakers to more readily remove this added copper, TTB is revising the existing listing in § 24.246 to raise the quantity of copper sulfate allowed to 6 parts per million, with the residual level remaining 0.5 part per million.

TTB has approved several requests from wineries under § 24.249 to use lysozyme, an enzyme derived from egg white, for the purpose of limiting malolactic bacterial growth during wine fermentation. Such growth, if left unchecked, can adversely affect a wine's taste and can cause stuck or sluggish fermentation. Lysozyme attacks the cell walls of gram-positive bacteria, such as Lactobacillus, Pediococcus, and Leuconostoc, causing them to degrade. This use of lysozyme can greatly reduce the need for sulfur dioxide, which poses a health hazard to sulfite-sensitive individuals. The FDA regulations at 21 CFR 184.1550 state that egg white lysozyme is GRAS when used in the production of cheese.

A number of wineries had the results of their initial experimental trials with lysozyme analyzed by independent laboratories, including Oregon State University, which has extensively researched the use of lysozyme in wine production. The wineries submitted the resulting analytical and sensory data, which included data on the shelf life of the treated wine, to the Bureau of Alcohol, Tobacco and Firearms (ATF), TTB's predecessor agency. The wineries were generally pleased with the results of these trials and analyses, which found that lysozyme inhibited the growth of malolactic bacteria without causing negative sensory impact on the wine. The most effective usage level ranged from 250 mg/L to 500 mg/L.

In 1993, ATF requested an advisory opinion from the FDA regarding the safety of using lysozyme in wine to inhibit the growth of malolactic bacteria. The Director of the FDA's Office of Premarket Approval at the Center for Food Safety and Applied Nutrition responded by letter dated December 15, 1993. The Director stated that the FDA was “currently unaware of any safety or health concerns for the general population with regard to the use of lysozyme in wine. Essentially, the use in question consists of adding a chemically unmodified major protein component (lysozyme) of one common food (eggs) to another common food (wine).”

Based on the above information, TTB is adding lysozyme to the list of authorized enzymatic activities in the § 24.246 authorized materials table for the purpose of limiting malolactic bacterial growth during wine fermentation. The approved usage rate may not exceed 500 mg/L.

Pasteurized whole or skim milk is currently listed in § 24.246 as authorized for the fining of white grape wine or sherry. The amount used may not exceed 2.0 liters of pasteurized milk per 1,000 liters of white wine or sherry (0.2 percent by volume).

TTB has approved applications from a few wineries to use milk and half-and-half at the approved usage rate of 0.2% by volume for the fining of red wine. One winery submitted before and after samples of the treated wine to the TTB Laboratory for analysis. The Laboratory conducted chemical and organoleptic analyses, which found that the milk treatment improved the taste of the wine without altering its basic characteristics.

In addition, a few wineries have applied to use milk and half-and-half to remove trichloroanisole (TCA), which causes off flavors, from wine. Laboratory data submitted by these wineries showed that milk and half-and-half were effective at removing TCA taint without altering the phenolic profile of the treated wine. Half-and-half was found to be particularly effective at removing the TCA due to its higher fat content. The level of milk product used ranged from 0.2% to 10% by volume. The wineries removed residual milk from the wine through conventional filtering methods. One winery submitted to the TTB Laboratory samples of treated wine, along with a control sample. Analytical and organoleptic tests performed by the Laboratory found that the treatment did not affect the vinous character of the wine.

Based on the above, TTB believes that § 24.246 should provide for the use of milk and half-and-half to fine all grape wine rather than only white wine and sherry. TTB also believes the present rate of usage (the milk product may not exceed 0.2% by volume of the wine) should remain unchanged. Similarly, § 24.246 should provide for the use of milk and half-and-half to remove off flavors from wine. TTB believes that wineries should have the option of using milk products to remove all off flavors from wine, not just those caused by TCA taint. The amount of milk or half-and-half used for this purpose should not exceed 10 liters per 1,000 liters of wine (1% of the volume of the wine). To effect these changes, we have replaced the heading “milk (pasteurized whole or skim)” with the heading “milk products (pasteurized whole, skim, or half-and-half)” in the § 24.246 authorized materials table.

Silica gel (colloidal silicon dioxide) is currently approved in § 24.246 to clarify wine. Its use may not exceed the equivalent of 20 lbs. colloidal silicon dioxide at a 30% concentration per 1,000 gallons of wine (2.4 g/L), and the silicon dioxide must be completely removed by filtration. The FDA regulations at 21 CFR 172.480 permit the use of silicon dioxide as a food additive.

An industry member applied to have the current authorization extended to the clarification of juice. TTB approved this request to use silica gel on juice, subject to the current limitations of § 24.246, and subject to final rulemaking action. The existing listing for silica gel is revised in this document to reflect this approval.

TTB has received and approved numerous requests from wineries to experiment with the procedure known as electrodialysis to remove excess tartrates from wine. Electrodialysis is a process by which certain ions, namely potassium, calcium, and tartrate ions, are extracted from wine by applying an electric field across specialized charged membranes.

As described by the supplier of the electrodialysis apparatus, the process consists of moving bulk wine past two membranes, one on either side of the wine. One membrane is selectively permeable to tartrate salts and the other is selectively permeable to calcium and potassium salts. As the wine passes between the two membranes, a water-based conductant is passed on the other side of both membranes. As both liquids flow through the apparatus, a weak electrical current is introduced, which causes the tartrate salts to migrate towards the positively charged membrane and the potassium and calcium salts to migrate toward the negatively charged membrane. As the tartrate, calcium, and potassium salts pass through the membranes, they enter the conductant stream and are carried out of the apparatus and discarded. The treated wine is then collected for bottling.

As part of the experimentation process described above, the wineries in question submitted before and after samples to the TTB Laboratory for analysis. The Laboratory analyzed the treated and untreated wines and found that the analytical profile of the treated wine was consistent with that of the untreated wine.

Based on the above, TTB is adding electrodialysis to the list of approved processes in § 24.248.

TTB has approved several applications from wineries to use two types of matrix filter sheets. One removes metals such as copper and iron from wine, while the other removes sulfides.

Both types of sheets contain the active ingredient Polyvinylimadazole (PVI), a terpolymer related to polyvinylpolypyrrolidone (PVPP), which is listed as an approved material in § 24.246. The PVI is immobilized in a cellulose matrix sheet and constitutes, at most, 40 percent of the weight of the sheet. Wine is passed through these sheets at a controlled flow rate using conventional filtering methods.

In the metal reducing sheet, metals are absorbed by the PVI and are thus removed from the wine. In the sulfide reducing sheet, sulfides in the wine bind to copper sites attached to the PVI. According to the manufacturer of the matrix sheets, the PVI and copper stay immobilized in the matrix and are directly not added to the wine, although the manufacturer calculates the possible migration of PVI into the wine to be less than 0.2 parts per billion.

The manufacturer of the matrix sheets filed a Food Contact Substance Notification with the FDA for the use of PVI as a component of matrix filter sheets used to remove metals and sulfides in alcoholic beverages. The FDA accepted this as an effective notification by a letter dated July 10, 2001, with the qualification that the PVI may constitute a maximum level of 40 percent by weight of the matrix sheet.

A number of the wineries seeking approval from TTB also submitted to the TTB Laboratory before and after samples of wines processed with the metal and sulfide reducing matrix sheets. In each case, TTB's analytical and organoleptic testing found that this treatment did not adversely affect the character and analytical profile of the wine.

Based on the above, TTB is amending § 24.248 to permit the use of metal and sulfide reducing matrix sheets in the treatment of wine.

TTB received a petition from an industry member to amend the regulations to allow the use of nanofiltration in combination with ion exchange to remove the volatile acidity (VA) from bulk wine. Although ion exchange is already widely used in the wine industry and is listed in § 24.248, the petitioner is requesting that we consider its use in connection with nanofiltration, which is not listed in § 24.248. We have also received and approved several requests from wineries for permission to use this process on an experimental basis.

The petitioner states that nanofiltration is a process by which wine is drawn into a storage tank where it is pressurized and piped through a mechanical sub-micron filtration process using nanotechnology. During the nanofiltration process, the wine is divided into two separate streams. One stream consists of the larger molecular weight compounds, such as flavors, and the second stream consists of the smaller molecular weight compounds, such as alcohol, water, and acetic acid. The second stream is passed through an ion exchange column, which selectively removes the acetic acid and allows the alcohol and water molecules to pass through. Upon exiting the ion exchange column, the second stream is re-combined with the first stream. The petitioner states that the membrane used in nanofiltration has a molecular weight cut-off of 100 Daltons at a pressure of 250 psi and a temperature of 60 degrees Fahrenheit.

As part of the experimentation approval process, the wineries submitted before and after samples to the TTB Laboratory for analysis. Our Laboratory analyzed the treated and untreated wines and found that the levels of volatile acids were indeed reduced without otherwise adversely affecting the wine.

Based on the above, TTB is adding nanofiltration to the list of approved processes in § 24.248.

TTB has approved several requests from wineries to use osmotic transport in the production of reduced alcohol wines. Osmotic transport is also known as isothermal transport, isothermal membrane distillation, or osmotic distillation.

Osmotic transport is a membrane transport process that involves two liquids, typically water solutions, which have different water vapor pressures. The solution to be treated is typically referred to as the “feed” solution and contains volatile components that are soluble or miscible in the receiving solution (typically referred to as the “stripping” solution). The membrane must be completely hydrophobic in order to prevent the stripping solution from passing through the membrane into the feed solution.

In the osmotic transport treatment approved by TTB, wine is pumped along one side of a completely hydrophobic microporous membrane with water on the other side. The wine and the stripping solution run tangential to, and are separated by, the thin membrane. The driving force for the separation is the vapor pressure difference between the alcohol in the wine and the water-based stripping solution. The higher vapor pressure of the alcohol in the wine causes some of the alcohol to evaporate, pass through the microporous membrane, and then condense in the water-based stripping solution. The stripping solution is usually circulated across the membrane until the alcohol content of the feed wine and the stripping solution are essentially equal. The process is performed at ambient temperature without elevated pressures (other than gentle pressure necessary to pump the wine).

As part of an industry member's request to experiment with this treatment, the industry member submitted before and after samples to the TTB Laboratory for analysis. The Laboratory's analysis found that the process did indeed reduce the level of alcohol in the wine.

Since the separation of alcohol from a fermented substance is considered to be a distilling process, osmotic transport operations cannot be conducted at winery premises but must instead take place at a distilled spirits plant. The alcohol-containing stripping solution may be used for distilling material or in the production of other than standard wine. The destruction of any alcohol derived from the osmotic transport process must be in accordance with the provisions of 27 CFR 19.691.

Accordingly, we are adding osmotic transport to the list of authorized processes in § 24.248, subject to the following conditions:

• The treatment must not alter the vinous character of the wine. The stripping solution must not migrate into the wine.

• The treatment must be conducted at a distilled spirits plant premises.

We request comments from everyone interested. We are especially interested in comments that address the question of whether the use of a particular material or process addressed in this document is consistent with good commercial practice. Please support your comment with specific information about the material or process in question.

All comments must reference T.D. TTB-17 and must include your name and mailing address. They must be legible and written in language acceptable for public disclosure. Although we do not acknowledge receipt, we will consider your comments if we receive them on or before the closing date. We regard all comments as originals.

All comments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider confidential or inappropriate for public disclosure.

You may submit comments in any of five ways:

• Mail: You may send written comments to TTB at the address listed in the ADDRESSES section of this document.

• Facsimile: You may submit comments by facsimile transmission to 202-927-8525. Faxed comments must—

(1) Be on 8.5 by 11-inch paper;

(2) Contain a legible, written signature; and

(3) Be no more than five pages long. This limitation ensures electronic access to our equipment. We will not accept faxed comments that exceed five pages.

• E-mail: You may e-mail comments to nprm@ttb.gov. Comments transmitted by electronic mail must—

(1) Contain your e-mail address;

(2) Reference T.D. TTB-17 on the subject line; and

(3) Be legible when printed on 8.5 by 11-inch paper.

• Online form: We provide a comment form with the online copy of this document on our Web site at http://www.ttb.gov/alcohol/rules/index.htm. Select the “Send comments via e-mail” link under T.D. TTB-17.

• Federal e-Rulemaking Portal: To submit comments to us via the Federal e-rulemaking portal, visit http://www.regulations.gov and follow the instructions for submitting comments.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine, in light of all circumstances, whether to hold a public hearing.

You may view copies of this document and any comments we receive by appointment at the TTB Library at 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5 by 11-inch page. Contact our librarian at the above address or telephone 202-927-2400 to schedule an appointment or to request copies of comments.

For your convenience, we will post this document and any comments we receive on the TTB Web site. We may omit voluminous attachments or material that we consider unsuitable for posting. In all cases, the full comment will be available in the TTB Library. To access the online copy of this document, visit http://www.ttb.gov/alcohol/rules/index.htm. Select the “View Comments” link under this document's number and title to view the posted comments.

Because no notice of proposed rulemaking is required for temporary rules, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

This temporary rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory analysis.

Pursuant to the provisions of 5 U.S.C. 553(b)(B), we have determined that prior public notice and comment procedures on these regulations are unnecessary and contrary to the public interest. Issuing a temporary rule rather than a notice of proposed rulemaking allows all domestic winemakers to use new wine treatments that have already been approved for sometime. This will “level the playing field” and reduce the possibility of confusion as to which materials and processes are approved. For the same reason, pursuant to the provisions of 5 U.S.C. 553(d)(1) and (3), we find that there is good cause for dispensing with a delayed effective date.

The principal author of this document was Jennifer K. Berry, Regulations and Procedures Division, Alcohol and Tobacco Tax and Trade Bureau. However, other personnel participated in its development.

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

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On December 23, 2003 (GBAPCD) and August 10, 2004 (VCAPCD), these rule submittals were found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

We approved versions of these rules into the SIP on the dates listed: GBAPCD Rule 101, April 13, 1982 and VCAPCD Rule 2, June 28, 1999.

Great Basin Rule 101 is amended by adding a set of open burning definitions to comply with the legal requirements imposed on the District. The rule is also amended by adding two new definitions for Emergency Generators and Water Pumps, and Owner/Operator.

Ventura County Rule 2 is amended by defining various terms that are used in multiple rules. The rule is also being amended by deleting some definitions that are no longer used in any of the District's rules.

The TSD has more information about these rules.

These rules describe administrative provisions and definitions that support emission controls found in other local agency requirements. In combination with the other requirements, these rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193). EPA policy that we used to help evaluate enforceability requirements consistently includes the Bluebook (“Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988) and the Little Bluebook (“Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001).

We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSD has more information on our evaluation.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by December 20, 2004, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on January 18, 2005. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 18, 2005.

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

EPA is publishing this rule without prior proposal because we view it as a noncontroversial action. We anticipate no significant adverse comments, because, to our knowledge, no new treatment options have become available to treat this high-concentration selenium waste more effectively. Having said this, in the “Proposed Rules” section of today's Federal Register publication, we are publishing a separate document that could serve as a proposal to grant a site-specific treatment standard variance to CWM (Model City, NY), if significant adverse comments are filed. See the Supplementary Information section in that notice on how to submit comments.

This direct final rule will be effective on January 3, 2005 without further notice unless we receive adverse comment on the proposed rule by December 20, 2004. If we receive adverse comment on the direct final rule, we will withdraw the direct final action and the treatment standard variance for CWM (Model City, NY). We will address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on this direct final rule must do so at this time.

Documents in the official public docket are listed in the index list in EPA's electronic public docket and comment system, EDOCKET. Documents may be available either electronically or in hard copy. Electronic documents may be viewed through EDOCKET. Hard copy documents may be viewed at the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OSWER Docket is (202) 566-0272.

An electronic version of the public docket is available through EDOCKET. You may use EDOCKET at http://www.epa.gov/edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Publicly available docket materials that are not available electronically may be viewed at the docket facility identified above. Once in the system, select “search,” then key in the appropriate docket identification number.

Under section 3004(m) of the Resource Conservation and Recovery Act (RCRA), EPA is required to set “levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constituents from the waste so that short-term and long-term threats to human health and the environment are minimized.” EPA interprets this language to authorize treatment standards based on the performance of best demonstrated available technology (BDAT). This interpretation was upheld by the DC Circuit in Hazardous Waste Treatment Council v. EPA, 886 F.2d 355 (D.C. Cir. 1989).

The Agency recognizes that there may be wastes that cannot be treated to levels specified in the regulations because an individual waste can be substantially more difficult to treat than those wastes the Agency evaluated in establishing the treatment standard. For such wastes, EPA has a process by which a generator or treater may seek a treatment standard variance (see 40 CFR 268.44). If granted, the terms of the variance establish an alternative treatment standard for the particular waste at issue.

Treatment of selenium poses special difficulties. In particular, it can be technically challenging to treat wastes containing selenium and other metals, e.g. , cadmium, lead or chromium, because of their different chemical properties and solubility curves (62 FR 26041, May 12, 1997).

The current treatment standard for wastes exhibiting the toxicity characteristic for selenium is based upon the performance of stabilization treatment technologies on selenium-bearing wastes with low concentrations. When the Agency developed these treatment standards for selenium, EPA believed that wastes containing high concentrations of selenium were rarely generated and land disposed (59 FR 47980, September 19, 1994). The Agency also stated that it believed that, for most wastes containing high concentrations of selenium, recovery of the selenium would be feasible using recovery technologies currently employed by copper smelters and copper refining operations (Id.). The Agency further stated in 1994 that it did not have any performance data for selenium recovery, but available information indicated that some recovery of elemental selenium out of certain types of scrap material and other types of waste was practiced in the United States. In 2004, there is no domestic production of secondary selenium. 1 Primary selenium is recovered, as a co-product with copper, from anode slimes generated in the electrolytic refining of copper.

In 1994, the Agency used performance data from the stabilization of mineral processing waste that was characteristically hazardous for selenium (waste code D010) to set the national treatment standard for selenium. At that time, we determined that this was the most difficult to treat selenium waste. This untreated waste contained up to 700 ppm total selenium and 3.74 mg/L selenium in the TCLP leachate. The resulting post-treatment levels of selenium in the TCLP leachate were between 0.154 mg/L and 1.80 mg/L, which (after considering the range of treatment process variability) led to EPA establishing a national treatment standard of 5.7 mg/L for D010 selenium non-wastewaters. This D010 mineral processing waste also contained toxic metals ( i.e. , arsenic, cadmium, and lead) above characteristic levels. The treatment technology used to establish the selenium levels also resulted in meeting the LDR treatment standards for these non-selenium metals. The reagent to waste ratios varied from 1.3 to 2.7 (62 FR 26041, May 12, 1997).

In the Phase IV final rule, the Agency determined that a treatment standard of 5.7 mg/L, as measured by the TCLP, continued to be appropriate for D010 non-wastewaters (63 FR 28556, May 26, 1998). The Agency also changed the universal treatment standard (UTS) for selenium nonwastewaters from 0.16 mg/L to 5.7 mg/L.

When EPA established the treatment standards for metal wastes and mineral processing wastes (63 FR 28555, May 26, 1998), we noted that we received comments from one company, Chemical Waste Management Inc. (CWM (Kettleman City, CA)), indicating that it was attempting to stabilize selenium-bearing wastes with concentrations much higher than those EPA had examined when it established the national treatment standard for wastes exhibiting the toxicity characteristic for selenium. In response, EPA proposed and subsequently granted variances for two high-level selenium waste streams. EPA granted these variances for three years, and required CWM (Kettleman City, CA) to conduct studies on approaches to further reduce the leachability of such treated wastes (63 FR 56886, May 26, 1999). EPA also required the company to investigate alternative treatment technologies that might provide more effective treatment, report annually on these investigations, and provide any analytical data from the treatment studies. 2 The annual reports include stabilization recipes that were used to meet the alternative treatment standards, the selenium concentrations in the untreated wastes, and the analytical results from leach testing of the treated wastes. EPA renewed this variance for another three year term, and continued to require CWM (Kettleman City, CA) to report on its treatability studies and to investigate whether more effective treatment is available (67 FR 36849, May 28, 2002). In 2004, EPA permanently established the two site-specific variances from the Land Disposal Restrictions treatment standards for Chemical Waste Management Inc., at their Kettleman Hills facility in Kettleman City, California, for these two selenium-bearing hazardous wastes (69 FR 6567, February 11, 2004).

On May 14, 2003, Heritage Environmental Services LLC (Heritage) submitted a site-specific treatment standard variance petition to EPA for their RCRA permitted facility in Indianapolis, Indiana. The petition requested a treatment standard variance for a selenium-bearing hazardous waste generated by Guardian Industries Corp. Heritage demonstrated that, because the physical and chemical properties of the waste differ significantly from the waste analyzed in developing the treatment standard, the waste cannot be treated to the specified levels or by the specified methods. EPA determined that stabilization of selenium with cement kiln dust, along with the addition of ferrous sulfate as a reagent for hexavalent chromium, was the best demonstrated available technology for the Guardian waste. EPA granted the site-specific treatment standard variance from the D010 treatment standards for the Guardian waste stream on February 11, 2004 (69 FR 6567).

Primary selenium  3 is a co-product in the mining of copper ores. The principal markets for selenium are in electronics (30%), glass manufacturing (20%), pigments (19%), metallurgical additives (14%) and agricultural/biological applications (6%). 4 In glass manufacturing, selenium is used to color container glass and other soda-lime silica glasses and to reduce solar heat transmission in architectural plate and automotive glass.

Because selenium is a non-renewable resource, and because the wastes in question contain high selenium concentrations, EPA's preference, rather than stabilization and land disposal, would be to recover the selenium in an environmentally sound manner. However, there was no recorded domestic production of secondary selenium in 2004. 5 All potential secondary selenium recovery technologies being considered have remained pilot projects and none of them have been shown to be economically viable. These factors suggest that development of an environmentally protective secondary selenium recovery system in the U.S. is not reasonably expected in the near future, and stabilization remains the best available treatment technology.

Under 40 CFR 268.44(h), facilities can apply for a site-specific variance in cases where a waste that is generated under conditions specific to only one site cannot be treated to the specified levels. In such cases, the generator or treatment facility may apply to the Administrator, or to EPA's delegated representative, for a site-specific variance from a treatment standard. The applicant for a site-specific variance must demonstrate that, because the physical or chemical properties of the waste differ significantly from the waste analyzed in developing the treatment standard, the waste cannot be treated to the specified levels or by the specified methods. There are other grounds for obtaining treatment standard variances, but this is the only provision relevant to this action.

On April 9, 2004, Chemical Waste Management-Chemical Services L.L.C. (CWM (Model City, NY)) submitted their petition for a treatment standard variance to EPA. All information and data used in the development of this treatment standard variance can be found in the RCRA docket (RCRA-2004-0009) for this rulemaking.

Guardian Industries Corp., in Jefferson Hills, Pennsylvania, is a specialty glass manufacturing facility. Emissions from its glass furnace are first subjected to lime injection, and subsequently captured in an electrostatic precipitator. Lime is added to remove sulphur compounds and selenium from the glass furnace gases. This waste stream consists of lime with 100-70,000 mg/kg selenium (0.1%-7%), 50-1000 mg/kg of chromium, 0-50 mg/kg of lead and 1-100 mg/kg of cobalt. The dust is a D010 characteristic waste because the selenium concentration exceeds 1.0 mg/L, as measured by the TCLP. 6 The waste is a dry powder with a bulk density of about 0.4 g/cm 3 , and contains no free liquids or organic constituents. The calcium content is high, approximately 30%, since the waste contains lime injected to the furnace exhaust. The rate of variation in the amount of waste is related to the manufacturing demand, and ranges from 20-50 tons/month.

The Land Disposal Restrictions found in 40 CFR 268.40(e) require most characteristic wastes to meet the universal treatment standards (UTS) in 40 CFR 268.48 for all underlying hazardous constituents (UHCs) before the waste can be land disposed. Analytical data on the raw Guardian waste indicate that the only underlying hazardous constituent present above UTS levels is chromium; occasionally the dust is also a D007 waste because the chromium exceeds the hazardous waste characteristic level of 5 mg/L, as measured by the TCLP. The universal treatment standard for chromium is 0.6 mg/L, as measured by the TCLP. As an underlying hazardous constituent, chromium must be treated to below the 0.6 mg/L universal treatment standard for the waste to be properly land disposed (58 FR 29560, May 24, 1993 and 63 FR 28556, May 26, 1998). Once the Guardian waste has been stabilized for selenium and treated for any underlying constituents, the waste can be disposed in a hazardous waste landfill.

An approach to immobilize the selenium in the Guardian waste and to reduce its exposure to leaching agents is to stabilize it with cement. The solid matrix chemically binds the metals in the waste and substantially lowers the surface area potentially exposed to leaching from that of untreated dust. As a result, the solidified waste should have a lower leaching potential after the waste is disposed in a hazardous waste landfill.

As mentioned above, analytical data on the raw Guardian waste indicate that the only underlying hazardous constituent present is chromium. CWM (Model City, NY) conducted treatability studies demonstrating that the addition of cement kiln dust alone is not sufficient to reduce the chromium levels to below the 0.6 mg/L treatment standard. To further treat the chromium in the waste, the hexavalent chromium ion must be reduced to the trivalent state so that precipitation can occur. CWM (Model City, NY) used ferrous sulfate for this purpose.

CWM (Model City, NY) conducted several rounds of testing using different stabilization recipes, which had varied amounts of Portland cement, cement kiln dust, ferrous sulfate, hydroxylamine hydrochloride, quick lime and polysulfide. Collectively, the TCLP tests on treated Guardian waste samples indicate a significant reduction in leachability. This reduction, however, is not enough to meet the LDR treatment standard of 5.7 mg/L, as measured by the TCLP.

EPA has determined, in analyzing the data from the preliminary tests, that the most effective stabilization recipe for this waste consists of 0.20 parts ferrous sulfate combined with 1.0 part cement kiln dust, resulting in a reagent to waste ratio of 1.20. Water is also added to make a thick paste, that upon curing, solidifies into a hard, cemented material. This optimized stabilization recipe reduces the leachable selenium and minimizes the amount of reagent that must be used to achieve this result.

Table I shows the results of leaching, as measured by the TCLP, of Guardian's waste treated using the optimized stabilization recipe. CWM (Model City, NY) stabilized the samples with reagent to waste ratios of 1.20. Treated selenium concentrations for the ten samples ranged from 15.09 mg/L to 24.5 mg/L, as measured by the TCLP.

When the Agency developed the current national treatment standard of 5.7 mg/L, as measured by the TCLP, for D010 selenium non-wastewaters, as discussed earlier, data with reagent to waste ratios that varied from 1.3 to 2.7 were used to calculate the treatment standard. 7 The Heritage selenium variance that was previously granted for the Guardian waste reflected a reagent to waste ratio of 2.35 (69 FR 6567, February 11, 2004). CWM (Model City, NY), treating the same Guardian waste, achieved a reagent to waste ratio of 1.2. CWM's (Model City, NY) reagent to waste ratio is significantly lower than the ratio reflected in the Heritage variance. The Agency notes that, by keeping the reagent to waste ratio to minimal levels, CWM (Model City, NY) is minimizing the amount of treated waste to be disposed in the hazardous landfill. The Agency recommends that CWM (Model City, NY) use a reagent to waste ratio of 1.2 as an upper limit.

Using the BDAT methodology, 8 the Agency has calculated an alternative treatment standard of 28 mg/L, as measured by the TCLP, based on ten data points (15.09, 15.6, 15.12, 18.14, 19, 19.3, 21.49, 24.5, 22.9, and 23.4 from Table I) that were the result of stabilization treatment using a reagent to waste ratio of 1.2 for the waste generated by Guardian Industries Corp.

After careful review of the data and petition submitted by CWM (Model City, NY), we conclude that CWM (Model City, NY) has adequately demonstrated that the wastes satisfy the requirements for a treatment standard variance under 40 CFR 268.44(h)(1). CWM (Model City, NY) has demonstrated that Guardian's glass manufacturing waste differs significantly in chemical composition from the waste used to establish the original selenium treatment standard. Selenium TCLP concentrations in the untreated waste are one or two orders of magnitude higher than TCLP concentrations in the waste used to develop the treatment standard for D010 hazardous wastes. Data from CWM (Model City, NY) demonstrate that wastes containing high concentrations of selenium are not easily treated. Furthermore, CWM (Model City, NY) is using stabilization as the treatment technology, which is consistent with EPA's determination that stabilization is the best available treatment technology for this waste, and the process is well-designed and well-operated.

In addition, CWM (Model City, NY) intends to minimize potential leaching in the landfill by restricting the placement of the waste in the cell. The stabilized waste will not be placed directly on the operation layer on the floor of the landfill, nor in the area of a stand pipe or leachate sump pump. EPA is supportive of this approach.

Therefore, EPA is today granting a site-specific treatment standard variance from the D010 treatment standards for the Guardian waste stream in question. Today's alternative treatment standard will provide sufficient latitude for CWM (Model City, NY) to treat the other metal present in the waste (chromium) to LDR treatment standards and, by raising the selenium treatment standard, will avoid the difficulty posed by the different metal solubility curves. EPA is amending 40 CFR 268.44 to include a selenium treatment standard of 28 mg/L, as measured by the TCLP, for the Guardian waste it treats.

Since this rule approves a variance from a numerical treatment standard, CWM (Model City, NY) may vary the reagent recipe it uses to best meet the alternative numerical standard. The Agency notes that, to avoid questions of impermissible dilution, CWM (Model City, NY) will need to keep the reagent to waste ratios within acceptable bounds. No specific ratios are being established in today's rule because the Agency does not desire to prevent further optimization of the treatment process. However, the Agency recommends that CWM (Model City, NY) use a reagent to waste ratio of 1.2 as an upper limit. This is the ratio used in the treated waste that formed the basis for establishing today's alternative treatment standard.

The treated waste, provided it meets applicable LDR treatment standards for any other hazardous constituents in the waste, 9 will be disposed in a RCRA Subtitle C landfill.

In today's notice, EPA has determined, in analyzing the CWM (Model City, NY) and Heritage data (69 CFR 6568, February 11, 2004) from the tests on the Guardian Waste, that the most effective stabilization recipe for this waste consists of 0.20 parts ferrous sulfate combined with 1.0 part cement kiln dust, resulting in a reagent to waste ratio of 1.20 to 1. This optimized stabilization recipe from CWM (Model City, NY) reduces the leachable selenium and minimizes the amount of reagent that must be used to achieve this result. As explained previously, we have calculated an alternative treatment standard, based on the performance of their treatment data, of 28 mg/L, as measured by the TCLP.

As described above, on February 11, 2004, EPA granted a site-specific variance from the D010 treatment standard for the same Guardian waste. This variance was granted to Heritage Environmental Services, LLC. The treatment standard that EPA approved in this variance, 39.4 mg/L, as measured by the TCLP, and the reagent to waste ratio (2.35 to 1 as an upper limit) used to achieve this level, are both higher than those achieved by CWM (Model City, NY) for the source waste. These results are obviously higher than the alternative treatment standard for the same waste. After careful study, EPA sees no reason that the treatment standard for the same waste cannot be duplicated elsewhere. EPA has determined in today's rule that the treatment results achieved by CWM (Model City, NY) reflect the best demonstrated available treatment for the Guardian selenium waste stream. The alternative treatment standard will provide sufficient latitude for CWM (Model City, NY) to treat the chromium present to meet universal treatment standards (UTS). We also find (obviously) that since the treatment standard is above the characteristic level for selenium, that treatment is not being required to a level below which threats to human health and the environment are minimized, and that treatment of selenium to the lower level established further minimizes threats posed by the waste's land disposal. Therefore, in addition to granting a site-specific variance to CWM (Model City, NY), EPA is modifying the Heritage alternative treatment standard for the Guardian selenium waste that EPA had previously granted so that it is consistent with the level that CWM (Model City, NY) has demonstrated as BDAT for this selenium waste.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether a 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.

Because this rule does not create any new regulatory requirements, it is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review. This variance only changes the treatment standard applicable to a D010 waste stream that is treated at the CWM Chemical Services, LLC facility in Model City, New York and at the Heritage Environmental Services LLC facility in Indianapolis, Indiana.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This site-specific treatment standard variance does not impose information collection burden on CWM (Model City) given their petition contains the information needed to determine effectiveness of treatment. All information and data used in the development of this treatment standard variance can be found in the RCRA docket (RCRA-2004-0009) for this rulemaking. This action also does not change in any way the paperwork requirements already applicable to this waste. Therefore, it does not affect the requirements under the Paperwork Reduction Act.

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.

This final rule is not subject to notice and comment requirements under the APA or any other statute because the rule will not have a significant economic impact on a substantial number of small entities. This treatment standard variance does not create any new regulatory requirements. Rather, it establishes an alternative treatment standard for a specific waste stream, and it applies to two facilities; the CWM Chemical Services, LLC facility in Model City, New York and the Heritage Environmental Services LLC facility in Indianapolis, Indiana.

After considering the economic impacts of today's direct final rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. This direct final rule will not impose any requirements on small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 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.

Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector, and it does not impose any Federal mandate on State, local, or tribal governments or the private sector within the meaning of the Unfunded Mandates Reform Act of 1995. This rule also does not create new regulatory requirements; rather, it merely establishes an alternative treatment standard for a specific waste that replaces a standard already in effect. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. For the same reasons, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments.

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 final 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. Today's rule does not create a mandate on state, local, or tribal governments. The rule does not impose any enforceable duties on these entities. 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 9, 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 final rule does not have tribal implications, as specified in Executive Order 13175. Today's final rule does not significantly or uniquely affect the communities of Indian tribal governments. This rule issues a variance from the LDR treatment standards for a specific characteristic selenium waste. Thus, Executive Order 13175 does not apply to this rule.

“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 E.O. 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.

Today's final rule is not subject to E.O. 13045 because it does not meet either of these criteria. The waste described in this treatment standard variance will be treated by CWM Chemical Services, LLC and Heritage Environmental Services LLC, and then be disposed of in a RCRA Subtitle C landfill, ensuring that there will be no risks that may disproportionately affect children.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Pub. L. 104-113, section 12(d) (15 U.S.C. 272 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 action does not involve technical standards based on new methodologies. Therefore, EPA did not consider the use of any voluntary consensus standards.

EPA is committed to addressing environmental justice concerns and is assuming a leadership role in environmental justice initiatives to enhance environmental quality for all residents of the United States. The Agency's goals are to ensure that no segment of the population, regardless of race, color, national origin, or income bears disproportionately high and adverse human health and environmental impacts as a result of EPA's policies, programs, and activities, and that all people live in clean and sustainable communities. In response to Executive Order 12898 and to concerns voiced by many groups outside the Agency, EPA's Office of Solid Waste and Emergency Response formed an Environmental Justice Task Force to analyze the array of environmental justice issues specific to waste programs and to develop an overall strategy to identify and address these issues (OSWER Directive No. 9200.3-17). Today's variance applies to a characteristically hazardous waste stream at the CWM Chemical Services, LLC facility in Model City, New York and at the Heritage Environmental Services LLC facility in Indianapolis, Indiana. The selenium waste will be disposed of in a RCRA Subtitle C landfill, after appropriate treatment, ensuring protection to human health and the environment. Therefore, the Agency does not believe that today's rule will result in any disproportionately negative impacts on minority or low-income communities relative to affluent or non-minority communities.

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. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability, applying only to a specific waste type at two facilities under particular circumstances.

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 January 3, 2005.

Federal Motor Vehicle Safety Standard (FMVSS) No. 116, Motor Vehicle Brake Fluids, specifies requirements for fluids for use in hydraulic brake systems of motor vehicles, containers for these fluids, and labeling of the containers. The purpose of the standard is to reduce failures in the hydraulic braking systems of motor vehicles that may occur because of the manufacture or use of improper or contaminated fluid.

On January 16, 2001, we published in the Federal Register (66 FR 3527)  1 a notice of proposed rulemaking (NPRM) to make technical modifications in two of the standard's tests, the evaporation test and the corrosion test. We believed the proposed modifications would improve repeatability and reproducibility  2 of the tests, and thus improve the enforceability of the standard. We also requested comments concerning the retention of the evaporation test.

FMVSS No. 116 specifies various performance requirements relating to evaporation that must be met when brake fluid is tested according to a specified procedure that involves heating the brake fluid in an oven for an extended period of time. Among other things, the loss by evaporation must not exceed 80 percent by weight. See S5.1.8 and S6.8 of the standard.

In the NPRM, we stated that for a number of years, we have been concerned that the evaporation test may allow too much variability in test results. Because of this, we sponsored a study titled “Evaporation Test Variability Study,” which was published in May 1993. The study sought to identify and evaluate parameters of the brake fluid evaporation test procedure of FMVSS No. 116 that influence the high variability of results between laboratories. It also sought to develop procedural improvements to increase the precision and reproducibility of brake fluid evaporation measurements. This included validating procedural modifications through conducting an interlaboratory round robin program using four designated brake fluids.

The study identified four means by which test result variability could be reduced: (1) Using a rotating shelf in the oven with a 6 rpm sample rotation, (2) specifying the location of the shelf supporting the sample within the oven, (3) controlling the oven temperature monitoring point, and (4) using oven calibration fluid for purposes of oven standardization. A copy of the study is available in the docket at NHTSA-2001-8633-2.

After we published the study, the Society of Automotive Engineers (SAE) committee on brake fluids initiated work to consider revising its evaporation test procedure to address these points. The SAE evaporation test procedure is set forth as part of Motor Vehicle Brake Fluid—SAE J1703 JAN95. The SAE committee developed a draft procedure that uses a rotating shelf oven, defines shelf placement, and includes temperature monitoring. The committee did not reach agreement on an oven calibration fluid because of concerns about lot variability.

More recently, however, the SAE committee voted to eliminate the evaporation test from its standard. Members of the committee believed that the requirement is outdated. The test was developed at a time when brake fluids did not have as good resistance to evaporation as today's brake fluids, and vehicle braking systems were not sealed. Members of the committee also believed that the evaporation test is redundant with the boiling point test, which evaluates similar brake fluid properties. The test was first deleted from the 2002 edition of SAE J1703.

Particularly given that the evaporation test included in FMVSS No. 116 was originally developed by SAE, we addressed in the NPRM the issue of whether the test should be retained in our standard. In the NPRM, we tentatively concluded that the evaporation test should be retained in FMVSS No. 116, noting that even though today's brake fluids may well have better resistance to evaporation than those in use when the test was originally developed, deletion of the test from FMVSS No. 116 could permit the introduction of inferior brake fluids into the United States market. We also noted that even if current brake fluid manufacturers would be unlikely to introduce such products, such introduction could come from new market entrants. For these reasons, we tentatively decided to retain the evaporation test in Standard No. 116, but requested comments on this issue.

In the NPRM, we stated that assuming that the evaporation test was retained in FMVSS No. 116, we believed it was appropriate to improve the repeatability and reproducibility of the test. We stated our belief that while there are unresolved technical issues concerning oven calibration fluid, the repeatability and reproducibility of the evaporation test can be improved by adopting the other means for reducing test result variability that were identified by the NHTSA-sponsored report and included in the SAE committee draft procedure. Accordingly, in the NPRM, we proposed to amend the test procedure to specify use of a rotating shelf oven, define shelf placement, and specify temperature monitoring.

FMVSS No. 116's corrosion test involves placing six metal strips (steel, tinned iron, cast iron, aluminum, brass and copper) in a standard brake wheel cylinder cup in a test jar, immersing the entire assembly in the brake fluid being tested, and then heating the fluid for an extended period of time. The metal strips and wheel cylinder cup represent the materials that comprise brake system components that are in contact with brake fluid (master cylinders, brake lines, caliper pistons, wheel cylinders, etc.).

A variety of performance requirements must be met at the end of the corrosion test procedure. Among other things, the metal strips are examined for weight change, which must not exceed specified percentages. See S5.1.6 and S6.6 of the standard.

In the NPRM, we stated that while we do not have as much information concerning variability of the corrosion test as we do for the evaporation test, we identified a change in the specification concerning how the metal strips are prepared prior to testing that we believe would improve repeatability and reproducibility. The standard currently specifies that each of the strips, other than the tinned iron strips, is to be abraded with wetted silicon carbide paper grit No. 320A until all surface scratches, cuts and pits are removed, and then polished with grade 00 steel wool. 3 In the NPRM, we stated our belief that less variability would result if the strips were further abraded with wetted silicon carbide paper grit No. 1200, instead of being polished with grade 00 steel wool, and if a visual acuity requirement for evaluating the presence of surface scratches, cuts and pits were specified.

We stated that if these changes were made, the repeatability and the reproducibility of the Corrosion test might be improved, since the steel wool might produce slight surface irregularities due to interaction with dissimilar metals that the No. 1200 silicon carbide paper would not. The visual acuity requirement would ensure removal of all surface scratches, cuts and pits that are visible to an observer having corrected visual acuity of 20/40 (Snellen ratio) at a distance of 300 mm (11.8 inches).

In response to the NPRM, we received comments from: ABIC Testing Laboratories, Inc. ABIC); Case Consulting Laboratories, Inc. (Case); Castrol International (Castrol); Clariant GmbH (Clariant); Continental Teves AG & Co.oHG (Continental); DaimlerChrysler Corporation (DaimlerChrysler); Dr. Jos Morsink (a member of the SAE Motor Vehicle Brake Fluids Standards Committee) of Shell Chemicals (Shell); Society of Automotive Engineers of Japan (JSAE); Toyota Motor North America, Inc. (Toyota); and from Tammy T. Shannon, Ph.D. and Gregory A. Carpenter (Brake Fluid Technologists and Members of the SAE Motor Vehicle Brake Fluids Standards Committee) of Union Carbide (Union Carbide). We also received a February 14, 2003 submission from members of the SAE Brake Fluids Committee and other brake fluid experts.

Several commenters on the NPRM argued that the evaporation test should be removed from FMVSS No. 116. Continental stated that it agrees with the decision of “the SAE Committee to cancel the evaporation test.” DaimlerChrysler recommended that the evaporation test be removed, stating “the test is simply obsolete, given the vastly improved brake fluids and sealed braking systems of today.” DaimlerChrysler stated that the boiling point test would “reveal most of the fluid property weaknesses targeted by the evaporation test,” providing the agency with “reasonable assurance that substantially inferior brake fluids would not be introduced to the U.S. market.”

Castrol provided several reasons why it believes the evaporation test should be removed. Castrol stated that since brake systems now tend to be sealed, evaporation is no longer an issue as it was in the past. Castrol stated further that although in some countries, there are brake fluid products (based on fluids such as water and diacetone alcohol) that would not meet the evaporation test requirements, it believes these fluids would not meet other FMVSS requirements. Castrol concluded that if these “new marketers were to enter the U.S. market, they would not be able to claim FMVSS 116 standards with these inferior fluids.”

Clariant and Shell provided similar explanations of why the SAE Brake Fluids Standards Committee voted to remove the evaporation test, stating “it has not been just an ad hoc decision.” Clariant and Shell stated that the Committee, after considering data from many support laboratories, concluded that the evaporation test was not reliable enough. Shell stated that although the repeatability improves by using a rotating oven, the reproducibility “stays below an acceptable performance level.” That company also stated that the evaporation test can be considered as outdated since it originates from a time that volatile alcohol was used as part of a brake fluid formulation. Clariant and Shell expressed the view that concerns about evaporation test testing for potential vapor lock are addressed by the equilibrium reflux boiling point (ERBP) requirements.

Union Carbide expressed the view that the evaporation test is “outdated,” and that brake fluid evaporation leading to vapor lock is “not a danger in modern braking systems.” Union Carbide expressed the view that even with the proposed changes to the evaporation test, the “results are unacceptable in repeatability and reproducibility.”

In a submission to NHTSA dated February 14, 2003, a member of the SAE Brake Fluids Committee provided background information concerning why the committee decided to recommend deletion of the evaporation test. The document was a summation of inputs from various SAE Brake Fluids Committee members, knowledgeable brake/brake fluid experts, and general automotive/historical references. 4 The document stated that the evaporation test “is not a practical test, due to continuing lack of repeatability and reproducibility much less functional variability” and the fact that today, brake systems are sealed to minimize brake fluid evaporation. The document stated that brake systems are also sealed to meet the requirements in FMVSS Nos. 105, Hydraulic and Electric Brake Systems, and No. 135, Passenger Car Brake Systems. FMVSS Nos. 105 (at S5.4.2) and 135 (at S5.4.2) require that brake fluid reservoirs contain sufficient fluid to operate brake systems normally when the friction components (pads and linings) are worn. FMVSS Nos. 105 (at S7.18(c)) and 135 (at S7.17(b)) also require that the brake system show no signs of leakage during inspection after completion of testing. According to the document, these requirements ensure that the braking system is highly resistant to brake fluid evaporation. The agency believes that the requirements in FMVSS Nos. 105 (at S5.4.2) and 135 (at S5.4.2) do not directly assure that brake fluid is highly resistant to evaporation because a sufficiently large master cylinder reservoir will provide adequate brake fluid to meet these requirements.

The February 14, 2003 document also stated that in FMVSS No. 116, the stroking properties test (at S5.1.13 and S6.13), subjects brake fluid to conditions similar to those in the evaporation test. Also, the stroking properties test simulates brake fluid function in a vehicle brake system, which the evaporation test does not do. The stroking properties test requires that brake fluid be maintained at a higher temperature for a longer period of time than the evaporation test procedures (evaporation test at 100 degrees Celsius for 46 hours; the stroking properties test at 120 degrees Celsius for approximately 70 hours). Therefore, in order to meet the stroking properties test, the brake fluid must be highly resistant to evaporation. It should be noted that under certain conditions, the evaporation test requires that brake fluid be heated continuously for 7 days. However, the stroking test could be used to evaluate brake fluid evaporation rate.

The evaporation test at S5.1.8(b) specifies that the “residue from the brake fluid after evaporation shall contain no precipitate that remains gritty or abrasive * * *” The February 14, 2003 document also cited S5.1.6, Corrosion; S5.1.9, Water tolerance; and S5.1.10, Compatibility, as tests in FMVSS No. 116 that could be used, with minor modifications, to evaluate the “grittiness” of the brake fluid.

Castrol and the February 14, 2003 document stated that paragraph S5.1.1. Equilibrium Reflux Boiling Point (ERBP) and paragraph S5.1.2, Wet ERBP, also assess the ability of the brake fluid to resist evaporation. The boiling point tests determine the boiling point temperature of new brake fluid (ERPB) and when water has been added, 3 percent by weight (wet ERBP). The boiling point tests and the evaporation test evaluate similar brake fluid properties.

Several other commenters to the NPRM, including ABIC, Case, Toyota, and JSAE, favored retaining the evaporation test, and suggested how the evaporation test could be made more objective, with the comments focusing on improving repeatability and reproducibility by providing more specifications for the oven. ABIC stated that the evaporation test “is the only test procedure, which gives an indication of the grittiness of the fluid tested.” ABIC suggested that an “open, bared type” shelf be used to hold the brake fluid test samples in the oven used in the evaporation test. ABIC expressed the view that the “open, bared type” shelf would allow adequate heat and airflow to rise up from the bottom of the shelf. ABIC further stated that in some ovens used to test brake fluid samples, the shelves were “almost a solid piece of metal,” absorbing heat. ABIC stated that this build up of heat under the tested samples may be another reason for individual differences in evaporation loss between samples tested.

Case cited the May 1993 NHTSA-sponsored report as supporting improvement in Evaporation test results. Case stated that the “rotating shelf modification and standardized positioning of temperature sensors will produce much better agreement within and between laboratories.”

Toyota commented that the size of the oven and the area and shape of the oven's vent hole should be specified because without such detailed specifications, the test equipment may vary between laboratories used by NHTSA and the industry. JSAE commented that other factors such as “oven capacity or vent area” may affect the evaporation results. Neither commenter gave specifications for the ovens or the vent areas that it believes would result in a more repeatable and reproducible evaporation test.

After careful consideration of the comments, we have decided to remove the evaporation test. As discussed earlier, in preparing the NPRM, we considered whether the test should be retained in FMVSS No. 116, particularly in light of the decision by the SAE Brake Fluids Committee to remove the test from the SAE standard. We indicated in the NPRM that we were concerned that removal of the test could permit the introduction of inferior brake fluids into the United States market, even if current brake fluid manufacturers would be unlikely to introduce such products.

On further consideration of this issue, however, we are persuaded that the evaporation test is unnecessary given changes in brake system designs and in brake fluid formulations since the test was developed, and that other tests in the standard will prevent the introduction of inferior brake fluids into the United States market. In particular, we note that the evaporation test dates back to a time when hydraulic brake systems were vented and when brake fluid contained alcohol or castor oil (substances with lower boiling point temperatures than present day brake fluid formulas). Present day brake fluid formulas do not contain alcohol or castor oil. Moreover, FMVSS No. 116 includes other tests, such as the boiling point test, the stroking test, the corrosion test, and the water tolerance test, which will prevent the introduction of inferior brake fluids into the United States market.

We have also factored continuing problems related to repeatability and reproducibility into our decision. While it might be possible to address these problems by further research, we believe it would not be a good use of our resources to conduct such research given the evidence that there is no longer a safety need for this test in FMVSS No. 116.

Commenters provided a variety of views on whether and on how the corrosion test should be changed. Two commenters, Case and Union Carbide, recommended that the proposed changes to the corrosion test be made final.

Castrol, DaimlerChrysler, Clariant, and JSAE gave qualified support for the proposed changes to the corrosion test. Castrol suggested that the corrosion test be amended by eliminating the step of “finishing” the test strips following the preparation and cleaning of the surface with the 320A silicon carbide paper, in other words, to follow the procedure currently specified in SAE J1703. In general, Castrol recommended compatible national and international standards.

DaimlerChrysler stated that it does not have the “technical experience or knowledge that would allow for fair judgment of the proposed test strip preparation method.” It noted that NHTSA should “take care that the quantitative results of corrosion testing are not significantly altered due to changes in testing methodology, as such an alteration would necessitate reconsideration of compliance as well.”

Clariant agreed with the proposed change from steel wool to the “wetted silicon carbide paper grit No. 1200.” However, it stated that the surface of the test specimen with the “wetted silicon carbide paper grit No. 1200” will be rougher than after the steel wool polish step, resulting in “higher corrosion rates” reported than before.

The JSAE suggested the following additional procedures: taking more time for abrading with the “No. 1200 papers” after the “No. 320 paper;” and adding several steps “( i.e. , by using No. 320, No. 600, No. 800, and No. 1200) between the No. 320 and No. 1200 steps.” JSAE did not suggest the length of time to be spent abrading, using each of these papers, or the total length of time to be spent using all of these suggested papers.

Continental did not oppose the proposed changes to the Corrosion test, noting that the change from steel wool to silicon paper will not adversely affect the test results and will result in consistent test strip preparation.

Toyota recommended that the current corrosion test be retained, arguing that it is repeatable and reproducible. It stated that it has found that variations in this test are minimal enough that the performance of the brake fluid may be assessed accurately. That company also stated that it has found that the testing variability improvements using the proposed test are unobservable, and submitted data from several tests in support of that position. Toyota argued that changing the test would result in an unnecessary burden on manufacturers.

Shell asked for evidence that use of silicon carbide paper (as proposed in the NPRM) would result in less variability in test results. ABIC recommended that NHTSA “may want to evaluate other abrading materials before they make a final recommendation.”

In response, NHTSA notes that testing conducted to date with the new test apparatus does not indicate significant changes in test results from previous tests. However, the agency believes the new procedure will improve the enforceability of FMVSS No. 116. Also, the agency does not believe that additional changes in test apparatus will significantly change the test results.

After carefully considering the comments, we have decided to adopt the proposed modification to the corrosion test. We believe this change will produce more consistent test results and thereby improve repeatability and reproducibility.

We note that SAE standards J1703 and J1704 currently specify that the metal strips be prepared for testing by abrading with 320A paper only. The SAE Committee eliminated the preparation step involving steel wool because of the potential for the steel wool to react with some metal strips in a manner that could cause galvanic corrosion to occur. This type of reaction would not occur in a brake system environment and should therefore be avoided in a corrosion test.

While we have considered specifying abrading with 320A paper only, as suggested by Castrol, we believe this preparation leaves the test strips in a rough condition that is not representative of the surface conditions of metals used to fabricate brake system components. Abrading or polishing with the 1200 paper results in a surface finish more similar to that of brake system components.

We do not believe it is necessary to specify additional abrading steps, as suggested by JSAE. We believe the new visual requirements for test strip inspection should ensure that the test strips are sufficiently smooth.

While it is possible, as suggested by Clariant, that the test's modification could in some cases result in slightly more corrosion, the available information, including that provided by ABIC, Toyota, and SAEJ, indicates that results from the current and new procedure are comparable. We do not believe this minor test change will cause any manufacturer to have to reformulate or otherwise change its brake fluid.

We do believe, however, that the change will result in less variation of test strip condition prior to testing, thereby improving repeatability and reproducibility. Moreover, by eliminating the use of steel wool, it will address the potential problem of electrolysis. Therefore, we believe it is appropriate to adopt the change as proposed.

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

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

The agency has carefully considered these statutory requirements in promulgating this final rule to amend FMVSS No. 116. As previously discussed in detail, we have solicited public comment in an NPRM and have carefully considered the public comments before issuing this final rule. As a result, we believe that this final rule reflects consideration of all relevant available motor vehicle safety information. Consideration of all these statutory factors has resulted in the following two decisions in this final rule. First, we have decided to remove the evaporation test from FMVSS No. 116. Because the evaporation test was initially adopted into FMVSS No. 116 to meet the need for motor vehicle safety, we indicated in the NPRM that we were concerned that removal of the evaporation test could permit the introduction of inferior brake fluids into the United States market, even if current brake fluid manufacturers would be unlikely to introduce such products.

After reviewing the public comments and upon further consideration of the evaporation test issue, we are persuaded that the evaporation test is unnecessary given changes in brake system designs and in brake fluid formulations since the test was developed, and that other tests in FMVSS No. 116 will prevent the introduction of inferior brake fluids into the United States market. In particular, we noted that the evaporation test dates back to a time when hydraulic brake systems were vented and when brake fluid contained alcohol or castor oil (substances with lower boiling point temperatures than present day brake fluid formulas). Present day brake fluid formulas do not contain alcohol or castor oil. Moreover, FMVSS No. 116 includes other tests, such as the boiling point test, the corrosion test, the water tolerance test, and the stroking test, which will prevent the introduction of inferior brake fluids into the United States market.

Second, after carefully considering the comments, we have decided to adopt the proposed modification to the corrosion test. We believe this change will produce more consistent test results and thereby improve repeatability and reproducibility. We note that the current corrosion test (which is revised in this final rule) of Standard No. 116 is based on an SAE recommended practice. SAE standards J1703 and J1704 currently specify that metal strips used in the corrosion test be prepared for testing by abrading with 320A paper only. The SAE Committee eliminated the preparation step involving steel wool because steel wool has the potential to react with some metal strips in a manner that could cause electrolysis to occur. An electrolytic reaction would not occur in a brake system and should therefore be avoided in a corrosion test. We have changed the SAE recommended procedure as follows. While we considered specifying abrading with 320A paper only, we believe this preparation leaves the test strips in a rough condition that is not representative of the surface conditions of metals used to fabricate brake system components. We have concluded that since abrading or polishing with the 1200 paper results in a surface finish more similar to that of brake system components, adding the extra step of abrading the test strips with the 1200 paper would meet the need for motor vehicle safety.

In the NPRM, we proposed to make the amendments proposed in the NPRM effective one year after publication of a final rule in the Federal Register . We received no comments on the effective date issue. Therefore, as proposed in the NPRM, and in accordance with 49 U.S.C. 30111(d) Effective date of standards, the provisions in this final rule making changes to the corrosion test take effect one year from the date of publication of this final rule in the Federal Register . In this final rule, we have determined that there is no longer a safety need for the evaporation test. Therefore, in order to timely remove cost and regulatory burdens associated with testing for brake fluid evaporation (for which NHTSA has determined there is no longer a safety need), the provisions regarding the evaporation test will be removed sixty days from the date of publication of this final rule in the Federal Register .

NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. It was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” Further, it is not significant for the purposes of the DOT policies and procedures.

This final rule does not affect the stringency of Standard No. 116, but instead improves the repeatability and reproducibility of the existing corrosion test and removes an outdated test that is no longer needed for safety.

Since, in this final rule, we have removed the evaporation test and made only minor changes to the corrosion test, the costs of the final rule are minimal. We estimate that there are five to 10 brake fluid manufacturers that provide brake fluid for the United States market, including OEM and aftermarket brake fluid, and a somewhat larger number of packagers of brake fluid. The brake fluid manufacturers will need to conduct testing to determine that their products meet the new requirements after these amendments become effective. However, the testing costs should not increase significantly because this final rule requires changes in relatively inexpensive test equipment. There may be a slight cost savings, as the brake fluid manufacturers no longer need ensure that their brake fluids meet the evaporation test. For these reasons, the final rule is unlikely to result in any change in the cost of brake fluid.

We have considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) I hereby certify that the final rule will not have a significant economic impact on a substantial number of small entities. The statement of the factual basis for this certification is that, as discussed above, the final rule does not affect the stringency of Standard No. 116, but instead removes the standard's evaporation test, to improve enforceability. Cost savings resulting from brake fluid manufacturers no longer having to conduct an evaporation test are unlikely to result in any change in the cost of brake fluid. Therefore, the changes made in this final rule will not have any significant economic impacts on small businesses, small organizations or small governmental jurisdictions.

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

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

The agency has analyzed this final rule in accordance with the principles and criteria set forth 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 final rule will not have substantial direct effects on the States, on the current Federalism-State relationship, or on the current distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The reason is that this final rule applies to brake fluid manufacturers, not to the States and local governments.

The Unfunded Mandates Reform Act (UMRA) of 1995 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 (adjusted for inflation with base year of 1995). This final rule will not result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Pursuant to Executive Order 12778, “Civil Justice Reform,” we have considered whether this final rule has any retroactive effect. We conclude that it does not have such an effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use.

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

NHTSA has determined that this final rule will not impose any “collection of information” burdens on the public, within the meaning of the Paperwork Reduction Act of 1995 (PRA). This rulemaking action will not impose any filing or recordkeeping requirements on any manufacturer or any other party.

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

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

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

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. This regulatory action does not meet either of those criteria.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards  5 in its regulatory activities unless doing so would be inconsistent with applicable law ( e.g. , the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. We note that this final rule's removal of the evaporation test from FMVSS No. 116 is consistent with the decision of the SAE Brake Fluids Standards Committee to remove the evaporation test from the SAE standard. We further note that the current corrosion test (which is revised in this final rule) of Standard No. 116 is based on an SAE recommended practice. SAE standards J1703 and J1704 currently specify that metal strips used in the corrosion test be prepared for testing by abrading with 320A paper only. The SAE Committee eliminated the preparation step involving steel wool because steel wool has the potential to react with some metal strips in a manner that could cause electrolysis to occur. An electrolytic reaction would not occur in a brake system and should therefore be avoided in a corrosion test. We have changed the SAE recommended procedure as follows. While we considered specifying abrading with 320A paper only, we believe this preparation leaves the test strips in a rough condition that is not representative of the surface conditions of metals used to fabricate brake system components. We have concluded that since abrading or polishing with the 1200 paper results in a surface finish more similar to that of brake system components, we are adding the extra step of abrading the test strips with the 1200 paper.

I. Background

On January 24, 1996, NHTSA published a final rule establishing two Federal motor vehicle safety standards (FMVSSs) to address the problem of rear underride crashes. 1 Underride occurs when a light vehicle, such as a passenger car, crashes into the rear end of a heavy truck that has a chassis higher than the hood of the light vehicle. In certain instances, the light vehicle slides under or “underrides” the rear end of the heavy vehicle such that the rear end of the trailer strikes and enters the passenger compartment of the light vehicle, resulting in passenger compartment intrusion (PCI). PCI can result in severe injuries and fatalities to the light vehicle occupants due to occupant contact with the rear end of the heavy truck. The final rule established two standards that operate together to reduce the number of injuries and fatalities resulting from underride crashes.

The first standard, FMVSS No. 223, “Rear impact guards,” specifies performance requirements that rear impact guards (underride guards) must meet before they can be installed on new trailers. It specifies strength requirements and test procedures that NHTSA uses to determine compliance with those requirements. FMVSS No. 223 also requires the underride guard manufacturer to provide instructions on the proper installation of the guard. Finally, the underride guards must be permanently labeled with the guard manufacturer's name and address, the month and year in which the underride guard was manufactured, and the letters “DOT”. The letters constitute certification by the manufacturer that the underride guard meets all the performance requirements of FMVSS No. 223. The standard requires manufacturers to place the label on the forward-facing surface of the horizontal member of the guard, 305 mm (12 inches) inboard of the right end of the guard, so that, as the guard is mounted on the vehicle, the label will be readily visible to Federal Motor Carrier Safety Administration (FMCSA) inspectors.

The second standard, FMVSS No. 224, “Rear impact protection, requires most new trailers with a GVWR of 4,536 kilograms (10,000 pounds) or more to be equipped with an underride guard meeting FMVSS No. 223. FMVSS No. 224 specifies requirements regarding the location of the underride guard relative to the rear of the trailer. It also requires that the underride guard be mounted on the trailer in accordance with the instructions of the guard manufacturer.

Both standards became effective on January 26, 1998.

On December 10, 1998, NHTSA received a petition for rulemaking from the Truck Trailer Manufacturers Association (TTMA) requesting that the agency amend FMVSS No. 223 by eliminating the underride guard labeling requirement. 2 TTMA argued that requiring a label on the underride guard is redundant for trailer manufacturers that manufacture their own guards because trailer manufacturers are already required to place a label on their trailers to certify their compliance with all FMVSSs. 3

On December 30, 1998, NHTSA received a similar petition from the American Trucking Associations (ATA), 4 and on January 18, 1999, another petition from Compass Transportation, Inc. 5 Both petitioners argued that the underride guard labeling requirement is redundant and requested that the agency eliminate the labeling requirement from FMVSS No. 223.

TTMA requested that if NHTSA declined to eliminate the guard labeling requirement, the agency should instead eliminate the requirement that the guard be labeled permanently. TTMA argued that it is unlikely that any label will remain on the guard for the life of the trailer. As a final alternative, TTMA requested that NHTSA allow manufacturers the flexibility to place the label where it may be the least exposed to damage from operational and environmental factors.

NHTSA published an NPRM responding to the three petitions for rulemaking on March 29, 2002. 6

In the NPRM, the agency denied the petitioners' request to eliminate the labeling requirement. The agency reasoned that the separate equipment (FMVSS No. 223) and vehicle (FMVSS No. 224) standards allow a trailer manufacturer to install an underride guard produced by a guard manufacturer rather than by the trailer manufacturer itself. This regulatory scheme allows the trailer manufacturers to avoid the cost of developing compliant underride guards by purchasing pre-certified underride guards from underride guard manufacturers.

In order to facilitate enforcement, NHTSA uses the guard certification label to determine whether an underride guard was manufactured and certified by the trailer manufacturer or purchased from an underride guard manufacturer who certified the guard prior to selling that item of equipment to the trailer manufacturer. If NHTSA did not require the underride guards to be labeled, our enforcement personnel would not be able to conclude readily which party certified an underride guard to the requirements of FMVSS No. 223. 7

Finally, the agency said that it did not believe that affixing the required label is a significant burden.

In the NPRM, the agency also denied petitioners' request to eliminate the requirement that the guard label be permanent. The agency acknowledged that the permanency of the label is not significant for the purpose of NHTSA's compliance testing, since the agency only tests new guards for compliance with FMVSS No. 223. However, the agency noted that the Federal Highway Administration (FHWA) recently amended its rear impact regulations to make them consistent with Standard Nos. 223 and 224. 8   9 The FHWA included a requirement for a permanent label, in part, “to help motor carriers quickly determine if the underride device on a newly manufactured trailer meets NHTSA's requirements, and to assist State agencies responsible for enforcing motor carrier safety regulations.”  10

NHTSA also reasoned that Standard No. 223 does not specify a particular means ( i.e. , labeling, etching, branding, stamping, or embossing) by which the manufacturer must achieve permanency. Finally, the agency noted that none of the petitioners had provided any information documenting any problems trailer or guard manufacturers have experienced in meeting the requirement for a permanent label.

In the NPRM, the agency granted the petitioners' request to commence rulemaking to allow manufacturers to place the label where it may be least exposed to damage. The agency stated that the precise location of the guard label is of little significance to NHTSA personnel conducting compliance testing on new guards. Further, the agency stated that FMCSA representatives had indicated to NHTSA that the specific location of the guard label is not critical to trailer inspectors, so long as it is located somewhere on the horizontal member of the guard.

However, to ensure that the label would not be hidden or obscured, the agency proposed to require that the label remain readily accessible for visual inspection, so that trailer inspectors would not have difficulty locating it.

Finally, the agency proposed to require that the label not interfere with retroreflective sheeting placed across the full width of the rearward facing surface of the horizontal member of the underride guard, as required by S5.7.1.4.1(c) of FMVSS No. 108.

Accordingly, the agency proposed to revise the third sentence of S5.3 of Standard No. 223 to read as follows:

In the NPRM, NHTSA specified a 60-day comment period. The agency did not receive any comments on the proposal. Accordingly, the agency is adopting the proposal as set forth in the NPRM.

This final rule will not result in any additional cost burdens on any regulated parties and will not produce additional safety benefits.

NHTSA has considered the impact of this rulemaking action under E.O. 12866 and the Department of Transportation's regulatory policies and procedures. This final rule 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 expected impact of the final rule is so minimal that the final rule does not warrant preparation of a full regulatory evaluation. This rulemaking will not impose any new requirements or costs on manufacturers. Instead, this rulemaking allows more flexibility in the location of the certification label already required by FMVSS No. 223. Accordingly, the final rule will not result in any additional costs burdens on the manufacturer of underride guards or trailers equipped with underride guards.

This rulemaking is not the subject of significant Congressional or public interest.

NHTSA has considered the impacts of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). I hereby certify that the final rule will not have a significant economic impact on a substantial number of small entities. This rulemaking does not impose any new requirements or costs on manufacturers. Instead, this rulemaking allows more flexibility in the location of the certification label already required by FMVSS No. 223. Accordingly, the final rule will not result in any additional costs burdens on the manufacturer of underride guards or trailers equipped with underride guards.

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

NHTSA has analyzed this final rule in accordance with the principles and criteria contained in the Executive Order 13132, and has determined that this rulemaking does not have sufficient Federal implications to warrant consultation with State and local officials or the preparation of a Federalism summary impact statement. This final rule does not have any substantial impact on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. The final rule is not intended to preempt state tort civil actions.

This amendment will not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use.

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

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule does not have any new requirements that are considered to be information collection requirements as defined by the OMB in 5 CFR part 1320.

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

There are no applicable voluntary consensus standards available at this time. However, NHTSA will consider any such standards if they become available.

The Unfunded Mandates Reform Act of 1995 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 ($120,700,000 as adjusted for inflation with base year of 1995).

This final rule will not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $120,700,000 annually.

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

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://www.dms.dot.gov.

Underride occurs when a light vehicle, such as a passenger car, crashes into the rear end of a heavy truck that has a chassis higher than the hood of the light vehicle. In certain instances, the light vehicle slides under or “underrides” the rear end of the heavy vehicle such that the rear end of the trailer strikes and enters the passenger compartment of the light vehicle, resulting in passenger compartment intrusion (PCI). PCI crashes can result in severe injuries and fatalities to the light vehicle occupants due to occupant contact with the rear end of the heavy truck.

In an attempt to reduce the frequency and severity of underride collisions, NHTSA issued FMVSS No. 224. 1 The standard requires that all new trailers and semitrailers with a Gross Vehicle Weight Rating (GVWR) of 10,000 lbs or more be equipped with a rear impact guard (underride guard). The underride guard is attached to the rear of the trailer (within 12 inches [305 mm] of the rear extremity of the vehicle) and acts to prevent the light vehicle from sliding under the trailer chassis.

The RCC horizontal discharge trailer is a unique piece of equipment used in the road construction industry to deliver asphalt and other building materials to a construction site. The trailer is equipped with a mechanical drive and a horizontal conveyor, which gradually discharges asphalt mix into a paving machine overlaying the road surface with asphalt material.

With respect to FMVSS No. 224, the RCC horizontal discharge trailer's most unique and technologically problematic feature stems from the fact that the rear of the trailer is designed to connect with and latch onto various paving machines. Typically, the paving machine attaches to the rear axle of the RCC horizontal discharge trailer via hydraulic arms, and the edge of the trailer's conveyor belt extends over the paving machine opening. An underride guard required by FMVSS No. 224 would prevent the RCC horizontal discharge trailer from effectively connecting with a paving machine.

Connection with paving equipment is critical to the road construction process as it allows the RCC horizontal discharge trailer to deposit asphalt mix directly into the paving machine hopper. This method also allows for a more controlled off-loading, as compared to a dump trailer, which is the other type of vehicle capable of delivering asphalt mix to road construction sites. 2

This rulemaking was initiated by a joint petition on behalf of Dan Hill & Associates, Inc. (Dan Hill), and Red River Manufacturing, Inc., a Division of Trail King Industries, Inc. (Red River). 3 Dan Hill and Red River are manufacturers of RCC horizontal discharge trailers. Their petition requested that the agency amend FMVSS No. 224 to “exclude construction controlled horizontal discharge semitrailers from the scope of the standard.” Since the effective date of the standard, 4 Dan Hill and Red River have each received a temporary exemption from the requirements of FMVSS No. 224, in part because of the impracticability of installing underride guards on RCC horizontal discharge trailers. 5

FMVSS No. 224 currently excludes pole trailers, pulpwood trailers, wheels back trailers, and “special purpose vehicles” because attachment of an underride guard to these specific vehicles is either impracticable or unnecessary. 6 For example, in the case of a wheels back trailer, the rear axle is located within 12 inches of the rear extremity of the vehicle. Because the rear wheels are located so close to the rear extremity of the vehicle, they act as an underride guard, making underride virtually impossible.

The RCC horizontal discharge trailers subject to this notice do not fit the current definition of special purpose vehicles. Because of their unique design necessitated by their interactions with the paving machines, a practicable RCC horizontal discharge trailer is also ill suited for a wheels back design exception. In sum, the RCC horizontal discharge trailers do not fall under any exclusion currently available in FMVSS No. 224. At the same time, complying with the standard is impracticable due to the unique design and purpose of these vehicles.

In their March 23, 2001 joint petition, Dan Hill and Red River requested that NHTSA amend FMVSS No. 224 to exclude construction controlled horizontal discharge trailers from FMVSS No. 224. According to the petitioners, the two parties together account for virtually all of RCC horizontal discharge trailer manufacturing. Approximately 0.12% of all trailers produced in the U.S. are RCC horizontal discharge trailers. Both manufacturers claim to have been unsuccessful in their independent efforts to develop an underride guard that is compliant, functional, and capable of interfacing with road-building equipment with which these vehicles are designed to work. A discussion of these various attempts is provided below. Based on their attempts to manufacture a compliant trailer that remains functional and safe under real world operating conditions, petitioners believe that bringing RCC horizontal discharge trailers into compliance with FMVSS No. 224 is not practically feasible. Both manufacturers stated failure to amend the standard would effectively terminate production of RCC horizontal discharge trailers unless petitioners continued to receive temporary exemptions.

On September 19, 2003, NHTSA published a Notice of Proposed Rulemaking to exclude RCC horizontal discharge trailers from the requirements of FMVSS No. 224. 7

In the NPRM, we described the apparent difficulty associated with installing underride guards on RCC horizontal discharge trailers without interfering with their intended function. We stated that, based on the joint petitions for rulemaking and previous petitions for temporary exemptions, there did not appear to be a practicable solution that would bring RCC horizontal discharge trailers in compliance with FMVSS No. 224. Accordingly, NHTSA proposed to exclude RCC horizontal discharge trailers from the requirements of FMVSS No. 224 by adding RCC horizontal discharge trailers to the list of excluded vehicles in S3 of the Standard.

To ensure that the standard excluded only the specific type of the vehicles discussed in this notice, we proposed the following definition of RCC horizontal discharge trailers:

In order to better understand practicability issues associated with bringing RCC horizontal discharge trailers in compliance with FMVSS No. 224, the agency asked for comment on the following questions:

1. Is a wheels back design a practical vehicle design alternative for RCC horizontal discharge trailers?

2. What is the maintenance and performance history of RCC horizontal discharge trailers with wheels back design?

3. Is a retractable underride guard design a practical solution for RCC horizontal discharge trailers? Does such a design create a risk of injury to workers operating or working near the trailer?

4. What is the maintenance and performance history of RCC horizontal discharge trailers with retractable underride guards?

5. Has any manufacturer of RCC horizontal discharge trailers subject to this notice been able to alternatively design a compliant vehicle equipped with an underride guard, that is able to slide over the paving machine in order to discharge asphalt mix?

The agency received 24 comments in response to the September 19, 2003 NPRM. Specifically, we received three comments from RCC horizontal discharge manufacturers; seventeen comments from road construction companies; two comments from Associated General Contractors of America, a comment from a RCC horizontal discharge trailer reseller; and a comment from a gravity feed dump trailer manufacturer.

All comments supported the proposed amendment to exclude RCC horizontal discharge trailers from the requirements of FMVSS No. 224. Several commenters emphasized impracticability issues associated with installing underride guards on RCC horizontal discharge trailers. Other comments from the road construction companies indicated their preference for horizontal discharge trailers over dump trucks. One commenter urged the agency to exclude gravity feed dump trailers in addition to RCC horizontal discharge trailers.

Based on our consideration of the comments and other available information, the agency is issuing this final rule to amend FMVSS No. 224 to exclude RCC horizontal discharge trailers from the requirements of the standard. The basis for our decision is discussed below.

Manufacturing a RCC horizontal discharge trailer to accommodate an underride guard has proven impracticable because the rear of the trailer is designed to connect with paving equipment. As previously discussed, the paving machine typically attaches to the rear axle of an RCC horizontal discharge trailer via hydraulic arms, and the edge of the trailer's conveyor belt extends over the paving machine opening. This configuration is critical to the road construction process as it allows the RCC horizontal discharge trailer to deposit asphalt mix directly into the paving machine hopper. A fixed underride guard prevents paving machines from interfacing with (locking onto) the RCC horizontal discharge trailer during the paving operations. 8

In the NPRM, we detailed petitioners' independent efforts to develop an underride guard that is compliant, safe under real-world operating conditions, and capable of interfacing with road- building equipment with which these vehicles are designed to work.

First, petitioners considered installing a retractable underride guard that would be engaged when the RCC horizontal discharge trailer travels to and from the actual construction sites, and retracted when the RCC horizontal discharge trailer is attached to the paving machine. However, designing a retractable underride guard suitable for this application has proven impractical for several reasons, chiefly among them the lack of adequate clearance. The edge of the RCC horizontal discharge trailer must extend over the paving machine in order to drop the hot asphalt mix into the hopper. Because paving machines differ in size and configuration, the trailer must allow for paving machines of different heights to slide under the conveyor structure. Typically, the paving machine openings are 31 to 35 inches off the ground. Conveyor structures of the RCC horizontal discharge trailers are normally 36 to 37 inches off the ground. As a result, the underride guard has to retract completely against the conveyor structure, in order to not interfere with the paving machine. Achieving such “flush” retraction has not proven feasible. Additionally, raising the overall ground clearance of the RCC horizontal discharge trailer in order to provide adequate clearance for a retractable underride guard would raise the center of gravity of the trailer, possibly making the vehicle more prone to rollovers.

Another difficulty in installing a retractable underride guard involves the location of a planetary gearbox that drives the conveyor system. The gearbox is located where a retractable underride guard system would otherwise be located. Further, asphalt accumulations on the underride guard cause certain maintenance problems, which have not yet been solved. Specifically, a retractable underride guard has mating surfaces that slide over each other. These surfaces would be under constant exposure to hot asphalt, which would result in mating surfaces sticking to each other. The hot mix asphalt materials that adhere to the guard surface may render it ineffective and may pose a risk of injury to the truck or machine operator.

In response to the NPRM, we received several comments on the practicability of a retractable underride guard. Ace Asphalt Paving Co., Keeler Construction Co., Rose's Enterprises and EDW. C. Levy Co. all stated that a retractable guard will result in increased cost and would increase the risk of an injury associated with employees being too close to the guard as it is being retracted or lowered. Red River reiterated that a retractable guard could pose a risk to construction workers because asphalt buildup would jam the retraction mechanism.

Additional efforts by the petitioners to bring their product into compliance with FMVSS No. 224 have similarly failed. Specifically, petitioners considered adding removable underride guards. They rejected this approach because of concerns that workers would fail to replace the underride guard before transit.

The agency did not receive comments directly addressing removable underride guards. Nevertheless, the agency continues to believe that removable underride guards are not a practicable solution. Because the standard applies only to new vehicles, this design approach would allow RCC horizontal discharge trailer manufacturers to meet FMVSS No. 224. However, given the inconvenience associated with continually removing and reinstalling a removable guard, it is likely that at some point the guard would be removed permanently. This scenario is inconsistent with the overall intent of the standard, which is to reduce the likelihood of underride collisions on U.S. highways.

Therefore, the agency concludes that installing underride guards on RCC horizontal discharge trailers is impracticable.

As previously discussed, S.3 of FMVSS No. 224 contains certain exceptions to the requirements of the standard. Specifically, “wheels back” trailers, and “special purpose vehicles” need not comply with FMVSS No. 224 because attachment of an underride guard to these specific vehicles is either impracticable or unnecessary. Neither exception applies to RCC horizontal discharge trailers.

A special purpose vehicle is defined as “* * * a trailer or a semitrailer having work-performing equipment that, while the vehicle is in transit, resides in or moves through the area that could be occupied by the horizontal member of the rear underride guard”  9 Examples of special purpose vehicles are auto transporters, and certain trailers equipped with lift gates.

The RCC horizontal discharge trailers subject to this rulemaking do not fit the current definition of special purpose vehicles, notwithstanding their unique nature and their work-performing equipment, because technically, their work-performing equipment does not move through or reside in the area in which the underride guard would be attached.

Wheels back trailer are equipped with a rear axle that is located within 305 mm (12 inches) of the rear extremity of the vehicle. Because the rear wheels are located so close to the rear extremity of the vehicle, they act as an underride guard, making PCI virtually impossible.

Because of the unique design necessitated by their interactions with the paving machines, a practicable RCC horizontal discharge trailer is ill-suited for a wheels back design. As previously mentioned, a RCC horizontal discharge trailer is designed to extend over a paving machine in order to drop the hot asphalt mix into the hopper. A rear axle located within 12 inches of the rearmost extremity would prevent the trailer from properly extending over the paving machine. In fact, several commenters confirmed that a RCC horizontal discharge trailer with a rear axle located within 12 inches of the rearmost extremity is unacceptable. For instance, Barre Stone Products, Inc. (Barre) stated that a 33-inch overlap between the RCC horizontal discharge trailer and the paving machine is necessary to ensure proper interaction between the hopper and the trailer, and to prevent spillage of asphalt material. Barre further noted that the wheels back design would not allow for proper articulation between the RCC horizontal discharge trailer and the paving machine at the point where they are joined. Accordingly, the agency concludes that wheels back design does not provide for a practicable solution for compliance with FMVSS No. 224.

In sum, RCC horizontal discharge trailers do not fall under any preexisting exclusions to the requirements of FMVSS No. 224 and cannot be effectively altered to fit these exclusions.

In evaluating available alternatives, NHTSA also considered the implications of not exempting RCC horizontal discharge trailers from the requirements of FMVSS No. 224. If RCC horizontal discharge trailers were no longer available to the road construction industry, the industry would have to rely on dump trucks to deliver asphalt to the construction sites. In the NPRM we stated that RCC horizontal discharge trailers appear to allow for a more controlled off-loading, as compared to a dump truck, which tends to discharge large quantities of asphalt mix instantly. A more controlled offloading not only prevents spillage of asphalt and other debris on the road surfaces, but also ensures a more leveled road surface construction. Furthermore, dump trucks may not be able to operate in situations where overhead obstructions such as bridges and power lines prevent raising the bed to unload asphalt materials.

In response to the NPRM, the agency received several comments from the road construction industry indicating their preference for RCC horizontal discharge trailers over dump trucks. Specifically, Central Specialties, Inc., and Las Vegas Paving Corp., stated that RCC horizontal discharge trailers are preferable to dump trucks because they allow for a more controlled delivery of asphalt, thus reducing the instances of spills and accidents on job sites. Further, RCC horizontal discharge trailers reduce or prevent asphalt material segregation during delivery. This makes road construction material more durable, resulting in better roads. By contrast, dump trucks cannot prevent asphalt material segregation, leading to a degradation in the quality of asphalt during transit. Manatt's Inc., and Mayo Construction, Co., noted that dump trucks are ineffective in delivering asphalt to uneven ground areas and present a serious safety hazard in areas with overhead power lines.

Based on the industry comments confirming the benefits of utilizing RCC horizontal discharge trailers in certain road construction operations, the agency concludes that dump trucks do not always present a viable alternative to RCC horizontal discharge trailers and cannot effectively replace them in all circumstances.

The agency has examined the possible safety consequences of excluding RCC horizontal discharge trailers from FMVSS No. 224. We note that RCC horizontal discharge trailers travel on U.S. highways only infrequently, in order to deliver the hot asphalt mix to the road construction sites. These vehicles spend most of their time in a controlled environment of a construction site, surrounded by paving machines and construction traffic control equipment ( e.g. traffic cones, safety signs), where a risk of underride collision is virtually nonexistent. 10 Further, only a very small number of all trailers (approximately 0.12%) produced in the U.S. are RCC horizontal discharge trailers. Accordingly, the agency concludes that the risk of a severe underride collision with an RCC horizontal discharge trailer is substantially lower than that of other vehicles subject to FMVSS No. 224.

When prescribing a motor vehicle safety standard, NHTSA is required to ensure that the standard is reasonable, practicable, and appropriate for the particular type of motor vehicle equipment for which it is prescribed (49 U.S.C. 30111(b)(3)). As discussed above, NHTSA has concluded that installing underride guards on RCC horizontal discharge trailers is impracticable. Further, comments from the road construction industry confirm that it is similarly impracticable to design an RCC horizontal discharge trailer that would fall under the existing wheels back exception. Therefore, the agency concludes that it is appropriate to exclude RCC horizontal discharge trailers from FMVSS No. 224.

In response to the NPRM, we received a comment from Reliance Trailer Co. (Reliance), requesting that NHTSA amend the definition of an RCC horizontal discharge trailers to include gravity feed dump trailers. Reliance is a trailer manufacturer specializing in gravity feed dump trailers for the use in road construction industry. 11 After carefully considering Reliance's request, NHTSA declines to exclude gravity feed dump trailers from the requirements of the standard.

A RCC horizontal discharge trailer is a single-purpose vehicle designed to deliver and discharge asphalt materials into paving equipment in a controlled manner. Unlike the RCC horizontal discharge trailers, gravity feed dump trailers are versatile vehicles used for a multitude of tasks. Often, gravity feed dump trailers are used in a way that does not require controlled offloading or interaction with other equipment such as paving machines. Further, many gravity feed dump trailers fall under wheels back exception. Others can easily accommodate an underride guard.

Because it is not impracticable for all gravity feed dump trailers to comply with FMVSS No. 224, the agency prefers to review the necessity of exempting gravity feed dump body trailers within the context of temporary exemptions pursuant to 49 CFR Part 555. In certain limited circumstances, the agency grants temporary exemptions to gravity feed dump trailer manufacturers based, in part, on impracticability of compliance. In fact, several gravity feed dump trailer manufacturers, including Reliance, have previously received exemptions from FMVSS No. 224. 12

The agency notes that gravity feed dump trailers are more common and represent a larger vehicle population compared to RCC horizontal discharge trailers. Accordingly, we are concerned that exempting a larger vehicle population from the requirements of the standard may lead to negative safety consequences exceeding those associated with exempting only the RCC horizontal discharge trailers. Because of a larger vehicle population and because of their versatility of use, the agency cannot conclude that a risk of an underride collision with a gravity feed dump trailer is negligible. Finally, we note that Reliance's request is outside the scope of the NPRM, and this rulemaking action cannot exempt other types of vehicles from the requirements of FMVSS No. 224 without further notice.

This final rule will not result in any additional cost burdens on any regulated parties. Exclusion of RCC horizontal discharge trailers from the requirements of FMVSS No. 224 will benefit RCC horizontal discharge trailer manufacturers and members of the road construction industry utilizing these vehicles because RCC horizontal discharge trailer manufacturers would not have to expend further financial resources in attempting to bring RCC horizontal discharge trailers into compliance with FMVSS No. 224.

The cost benefits associated with this final rule will result from the petitioners' and other third parties' ability to continue manufacturing and marketing their products. Currently, petitioners' ability to offer RCC horizontal discharge trailers depends on temporary exemptions. Further, E.D. Etnyre & Co. and other manufacturers who may have suffered sale volume losses as a result of offering a wheels back or other designs unpopular with typical RCC horizontal discharge trailer purchasers, may once again gain market share by offering a product that is more suitable to the industry needs. The actual costs savings to RCC horizontal discharge trailer manufacturers are difficult to estimate because petitioners have not been able to produce a viable underride guard for the equipment in question.

We also anticipate certain cost savings by members of the road construction industry based on their comments stating their preference of RCC horizontal discharge trailers to dump trailers. Road construction industry costs savings are not quantified because road construction companies did not submit data sufficient to enable NHTSA to create an actual cost estimate.

There are no safety benefits associated with this proposed rulemaking. As discussed in Section IV, however, we anticipate that because of very limited production, and similarly limited highway use exposure, there are minimal safety disbenefits associated with this final rule.

NHTSA has considered the impact of this rulemaking action under E.O. 12866 and the Department of Transportation's regulatory policies and procedures. This final rule 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 expected impact of the final rule is so minimal that the final rule does not warrant preparation of a full regulatory evaluation. This rulemaking will not impose any new requirements or costs on manufacturers. Instead, this rulemaking exempts RCC horizontal discharge trailer manufacturers from the requirements of FMVSS No. 224. Accordingly, the final rule will result in cost savings to manufacturers of RCC horizontal discharge trailers, and road construction companies purchasing these vehicles.

NHTSA has considered the impacts of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). I hereby certify that the final rule will not have a significant economic impact on a substantial number of small entities. This rulemaking does not impose any new requirements or costs on manufacturers. Instead, the final rule excludes manufacturers of RCC horizontal discharge trailers from the requirements of FMVSS No. 224. The manufacturers of RCC horizontal discharge trailers, among them Dan Hill, Red River, and E.D. Etnyre & Co. will realize certain cost savings because the standard will no longer require them to install underride guards on their RCC horizontal discharge trailers. However, because of the relatively small number of RCC horizontal discharge trailers produced yearly, any potential positive economic impact will not be significant. Accordingly, this amendment will not significantly affect small businesses, small organizations, or small governmental units. For these reasons, the agency has not prepared a final regulatory flexibility analysis.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule does not contain any collection of information requirements subject review under the Paperwork Reduction Act.

NHTSA has analyzed this final rule under the National Environmental Policy Act and determined that it would not have a significant impact on the quality of human environment.

NHTSA has analyzed this final rule in accordance with the principles and criteria contained in the Executive Order 13132, and has determined that this rulemaking does not have sufficient Federal implications to warrant consultation with State and local officials or the preparation of a Federalism summary impact statement. This final rule does not have any substantial impact on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. The final rule is not intended to preempt state tort civil actions.

This final rule will not have any retroactive effect. Under 49 U.S.C. 21403, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 21461 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 NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

The agency searched for, but did not find any voluntary consensus standards relevant to this final rule.

The Unfunded Mandates Reform Act of 1995 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 ($120,700,000 as adjusted for inflation with base year of 1995).

This final rule will not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $120,700,000 annually.

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

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

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

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.

This final rule will not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

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

The 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA is 24,404 metric tons (mt) as established by the 2004 harvest specifications for groundfish of the GOA (69 FR 9261, February 27, 2004). NMFS closed the directed fishery for Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA under § 679.20(d)(1)(iii) on September 10, 2004 (69 FR 55361, September 14, 2004), and reopened it on September 28, 2004 (69 FR 58367, September 30, 2004).