Proposed Rules. Final rule; response to petitions for reconsideration

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-06-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA 2006-25725] RIN 2127-AJ92 Federal Motor Vehicle Safety Standards; Seat Belt Assemblies AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT. ACTION: Final rule; response to petitions for reconsideration. SUMMARY: This document responds to three petitions for reconsideration of our August 2005 final rule amending the Federal motor vehicle safety standard for seat belt assemblies.

The amendments redefined and clarified certain requirements and established a new test methodology for emergency-locking retractors. The petitions for reconsideration requested that the agency adopt additional amendments. The petitions are granted in part and denied in part, and, through this document, we are amending the standard accordingly. DATES: *Effective Date:* The amendments made in this final rule are effective October 30, 2006. *Compliance Date:* The requirements of the August 2005 final rule, as amended by today's rule, become mandatory for all seat belt assemblies subject to the standard that are manufactured on or after February 22, 2007.

Voluntary compliance is permitted before that date. *Petitions for Reconsideration:* If you wish to submit a petition for reconsideration for this rule, your petition must be received by October 16, 2006. ADDRESSES: Petitions for reconsideration should refer to the docket number above and be submitted to: Administrator, Room 5220, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. See the SUPPLEMENTARY INFORMATION portion of this document (Section VI;

Rulemaking Analyses and Notices) for DOT's Privacy Act Statement regarding documents submitted to the agency's dockets. FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call Mr. Christopher Wiacek, Office of Crashworthiness Standards (Telephone: 202-366-4801) (Fax: 202-493-2290). For legal issues, you may call Mr. Eric Stas, Office of Chief Counsel (Telephone: 202-366-2992) (Fax: 202-366-3820). You may send mail to these officials at National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: Table of Contents I. Summary of Decision II. Background III. Petitions for Reconsideration IV. Discussion and Analysis A. Angle Tolerances 1. Acceleration Tests 2. Tilt-Lock Requirements B. Determination of Lock-Up C. Requirements for Dual-Sensing ELRs D. Other Issues V. Benefits and Costs VI. Rulemaking Analyses and Notices I. Summary of Decision This document responds to three petitions for reconsideration of our August 22, 2005 final rule 1 amending Federal Motor Vehicle Safety Standard (FMVSS) No. 209, *Seat Belt Assemblies* .

That final rule amended the standard to redefine the requirements and to establish a new test methodology for emergency-locking retractors (ELRs). Specifically, the final rule established a new, more tightly defined acceleration-time (A-T) corridor, added a figure illustrating the new acceleration-time corridor, provided a tolerance on angle measurements, and adopted similar instrumentation specifications to those currently found in other FMVSSs containing dynamic tests. 1 70 FR 48883 (August 22, 2005) (Docket No.

NHTSA-2005-22052-1). Petitions for reconsideration of the August 2005 final rule were submitted by the Automotive Occupant Restraints Council

(AORC)2 , BMW of North America

(BMW)3 , and TAKATA-PETRI AG (TAKATA-PETRI). 4 The petitioners requested additional amendments to Standard No. 209. 2 Docket No. NHTSA-2005-20052-3 and 4. 3 Docket No. NHTSA-2005-20052-5. 4 Docket No. NHTSA-2005-20052-7. The purpose of the August 2005 final rule was to clarify the test procedures for ELRs, while ensuring that those devices continue to perform their important safety function of locking up a seat belt in the event of a crash or emergency braking. These amendments to the standard apply to seat belt assemblies for use in passenger cars, multipurpose passenger vehicles, trucks, and buses. In general, the petitions for reconsideration requested minor technical modifications to the ELR provisions of Standard No. 209, the most significant of which involved:

(1)Modifications to various angle tolerances specified in the final rule, *e.g.* , in the acceleration tests (requested by the AORC) and the tilt lock requirements (requested by all three petitioners), and

(2)specification of how to determine the point of ELR lock-up (requested by BMW and TAKATA-PETRI). In addition, all three petitioners sought clarification that the final rule did not overturn the agency's earlier interpretation that Standard No. 209 requires dual-sensing ELRs ( *i.e.* , ELRs equipped with both vehicle acceleration-sensitive and webbing-sensitive retractors) to meet the requirements of the standard for either type of retractor, not both. One petitioner

(AORC)also sought correction of certain typographical errors identified in the laboratory test procedure for the standard ( *see* section IV of this document for a complete discussion of issues raised in the petitions and their resolution). We have decided to grant the petitions in part and to deny them in part. The following points highlight the amendments to Standard No. 209 that we are adopting in response to the petitions for reconsideration. • In order to resolve potential interpretation problems that could arise in determining ELR lock-up and to maintain an objective and repeatable test methodology, this final rule amends the standard's test procedures to provide that a belt load measurement of 35 N or more will indicate ELR lock-up (see S4.3(j)(2)(ii)). This approach is consistent with industry practice and is the one utilized by the testing laboratories with which the agency contracts for the performance of compliance testing. • This final rule eliminates the ± 0.5 degree tolerances specified for the acceleration requirements for ELRs stated in S5.2(j)(2)(iii)(A)(2) and S5.2(j)(2)(iii)(B)(2), which ensure adequate occupant restraint in the event of a crash. Because those provisions require ELRs to meet the standard's requirements over a broad range of angles, we have determined that a tight tolerance on those angles is unnecessary. Lead Time and Compliance Date In amending Standard No. 209 in response to the petitions for reconsideration, the agency has decided to retain the mandatory compliance date of February 22, 2007 for the amended ELR provisions, as provided in the August 22, 2005 final rule. Voluntary compliance is permitted before that date. In the August 2005 final rule, we stated our belief that existing ELRs will continue to meet the requirements of the standard, even though the amendments to the standard's test procedures may result in some minor costs to vehicle manufacturers and testing laboratories to reconfigure existing test equipment and/or purchase new test equipment. However, today's amendments to the standard involve only minor technical modifications in terms of how the test is conducted and how related results are interpreted. Accordingly, we believe that retention of the February 22, 2007 mandatory compliance date will continue to permit manufacturers and testing laboratories to comply with the standard's amended ELR requirements at minimal cost. II. Background On August 22, 2005, NHTSA published a final rule in the **Federal Register** to amend FMVSS No. 209, *Seat Belt Assemblies* , by redefining certain requirements and establishing a new test methodology for ELRs. That final rule established a new A-T (acceleration-time) corridor, added a figure illustrating the new A-T corridor, provided a tolerance on angle measurements, and adopted similar instrumentation specifications to those currently found in other FMVSSs containing dynamic tests. As noted above, the purpose of the amendments to Standard No. 209 was to clarify the test procedures for ELRs, while ensuring that those devices continue to perform their important safety function of locking up a seat belt in the event of a crash or emergency braking. The following points highlight the key provisions of the August 2005 final rule. • The final rule amended FMVSS No. 209 by adopting a specific A-T corridor for test pulses that includes an upper boundary onset rate of 375 g/sec and that permits an acceleration peak of 0.8 g. As amended, the standard sets a lower boundary for the A-T corridor with a minimum onset rate of 21.67 g/sec, and it further sets a steady state tolerance range of 0.65 g to 0.72 g. This new A-T corridor is intended to be sufficiently wide as to allow a range of onset rates to be tested that are more representative of real world crashes and emergency braking events. • The final rule modified the dynamic test requirements for ELRs so as to specify that each acceleration pulse be recorded using an accelerometer having a full-scale range of ± 10 g and be processed according to the practices set forth in Society of Automotive Engineers

(SAE)Recommended Practice J211-1 rev. December 2003, “Instrumentation for Impact Test—Part 1—Electronic Instrumentation,” Channel Frequency Class

(CFC)60. (That SAE standard has been incorporated by reference into FMVSS No. 209.) The rule also specified that webbing displacement is measured using a displacement transducer. • Unless a range of angles is specified or a tolerance is otherwise explicitly provided, the final rule stated that all angles and orientations of seat belt assemblies and components specified in the standard have a tolerance of ± 3 degrees. In terms of the rule's impacts, the agency anticipated that the final rule will not result in substantial changes to the performance of ELRs and that current ELRs will continue to comply with FMVSS No. 209 without the need for change. Additionally, we stated that we expect the final rule to clarify the specifications in the standard's test procedures. Furthermore, we stated our expectation that the final rule will result in only a minimal cost burden to vehicle manufacturers. Testing laboratories might need to reconfigure their testing equipment or purchase new equipment, but this one-time cost is likely to be minimal on a cost-per-vehicle basis. Nevertheless, in implementing these amendments to the standard, NHTSA provided 18 months of lead time, which we believe is adequate to allow vehicle manufacturers and testing laboratories to reconfigure their testing equipment or purchase new equipment so as to be consistent with the amended standard. Accordingly, manufacturers of seat belt assemblies must comply with the requirements of the final rule commencing on February 22, 2007. Voluntary compliance is permitted prior to the mandatory compliance date. III. Petitions for Reconsideration NHTSA received three petitions for reconsideration submitted in response to the August 2005 final rule. One petition for reconsideration was submitted by the AORC, 5 the organization which submitted the original petition for rulemaking that resulted in the final rule amending the standard. 5 The AORC is an industry association of 52 suppliers of occupant restraints, components/materials, and services to the automobile industry. The other petitions for reconsideration were submitted by BMW, a vehicle manufacturer, and TAKATA-PETRI, a supplier of seat belt assemblies. We note, however, that the petitions submitted by BMW and TAKATA-PETRI are virtually identical. Accordingly, reference to the arguments of either of these petitioners may be presumed to apply to both petitions in the balance of this document. All of these petitions may be found in Docket No. NHTSA-2005-22052. The petitioners requested further amendments to FMVSS No. 209 regarding issues they deemed either inadequately addressed by our August 2005 final rule or newly arising therefrom. The following discussion provides a general overview of the issues raised in the petitions for reconsideration. Specifically, the AORC asked the agency to amend the standard by increasing the angle tolerance in the standard from ± 0.5 degrees to ± 3 degrees for certain identified provisions where the ELR is to be rotated into multiple positions over a wide range of angles, thereby rendering a tight tolerance unnecessary. A wider tolerance in this case would not detract from safety and would presumably facilitate ease of testing. The AORC also sought clarification as to the applicability of angle tolerances to other identified provisions, and it requested correction of certain perceived errors in the Laboratory Test Procedure for Standard No. 209 (TP-209-06). 6 6 *See http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/Vehicle%20Safety/Test%20Procedures/Associated%20Files/TP-209-06.pdf.* In addition, the AORC requested that the standard be amended to ensure that the result of a 1981 letter of interpretation remains valid. In that interpretation, the agency addressed manufacturer responsibilities when “dual-sensing” ELRs are installed ( *i.e.* , ones utilizing both vehicle-sensitive and webbing-sensitive designs). The AORC expressed concern that the renumbering effected by the final rule would somehow alter the principle contained in that letter that manufacturers installing dual-sensing ELRs need only meet the requirements for one type of ELR, not both. (BMW's petition for reconsideration also discussed this issue, asking that the regulatory text of the standard be amended to clarify the requirements for dual-sensing retractors.) BMW (and TAKATA-PETRI) requested that the standard be amended to specify a tolerance tighter than ± 3 degrees for the standard's 15-degree no-lock requirement, because it argued that such a large tolerance on this “single-sided” requirement would not only lead to “nuisance locking,” but it would also result in unnecessary financial costs for manufacturers whose ELRs must comply with both U.S. and European regulations. According to BMW, there is currently no ELR available that could comply with the requirements of both jurisdictions and the ± 3 degree tolerance. Furthermore, according to BMW, the final rule's specification of a CFC 60 Filter results in a time shift of the peak value for the acceleration vs. time curve, as compared to the raw, unfiltered data. Because this time shift could impact a laboratory's ability to accurately determine the time of ELR lock-up, BMW recommended that the standard be amended to specify that a belt load sensor is to be used to determine when lock-up has occurred ( *i.e.* , when a belt load of 35 N ± 5 N is registered). All of the issues raised in the petitions for reconsideration are addressed in further detail in the section immediately below. IV. Discussion and Analysis A. Angle Tolerances 1. Acceleration Tests The August 2005 final rule provided under paragraph S5.4, *Tolerances on angles* , that “[u]nless a range of angles is specified or a tolerance is otherwise explicitly provided, all angles and orientations of seat belt assemblies and components specified in this standard shall have a tolerance of ± 3 degrees.” In setting requirements for seat belt assemblies manufactured on or after February 22, 2007, the final rule provided specific tolerances for dynamic acceleration tests for retractors sensitive to vehicle acceleration and for retractors sensitive to webbing withdrawal. Specifically, under S5.2(j)(2)(iii)(A)(2), for a vehicle-sensitive ELR, “[i]f the retractor does not meet the 45-degree tilt-lock requirement of S4.3(j)(2)(i)(D), accelerate the retractor in three directions normal to each other while the retractor drum's central axis is oriented at angles of 45, 90, 135, and 180 degrees ± 0.5 degrees from the angle at which it is installed in the vehicle and measure webbing payout.” For a webbing-sensitive ELR, S5.2(j)(2)(iii)(B)(2) provides: “The retractor drum's central axis shall be oriented at angles of 45, 90, 135, and 180 degrees ± 0.5 degrees to the horizontal plane. Accelerate the retractor in the direction of the webbing retraction and measure the webbing payout.” In its petition, the AORC generally welcomed the final rule's addition of angle tolerances to portions of the standard's ELR requirements that previously contained no tolerances. The AORC suggested that angle tolerances provide increased clarity in terms of the functional requirements and test procedures for ELRs. However, the AORC argued that the ± 0.5 degree tolerances in S5.2(j)(2)(iii)(A)(2) and S5.2(j)(2)(iii)(B)(2) are unnecessarily narrow. The AORC argued that, under both of these provisions, because the retractor is rotated into multiple positions, a wide range of angular positions is already included as part of these tests, thereby rendering a tight ± 0.5 degree tolerance unnecessary. In other words, these provisions provide designated test points that allow the agency to ensure that the ELRs function properly over a large range of angles, not to determine whether action precisely tied to one key angle occurs. Therefore, the AORC petition stated that those provisions of the standard should be amended to specify an angle tolerance of ± 3 degrees. Presumably, a wider tolerance in this case would facilitate ease of testing. After careful consideration, the agency agrees with the AORC that it would be possible to eliminate the ± 0.5 degree tolerances in S5.2(j)(2)(iii)(A)(2) and S5.2(j)(2)(iii)(B)(2), particularly since such modification would not compromise the relevant functional requirements of the standard or have negative safety consequences. That is because the retractor is required to meet those functional requirements of the standard over a broad range of angles. In such case, the multiple test angles specified serve as test points within that range, rather than tying the specific angle values to the triggering of some critical event. Therefore, after consideration of the petitioners' arguments, we have decided that the angle tolerance of ± 0.5 degrees in the provisions in question are unnecessary. Accordingly, we have decided to delete the tolerances specified under S5.2(j)(2)(iii)(A)(2) and S5.2(j)(2)(iii)(B)(2), thereby implicitly providing for a default tolerance of ± 3 degrees under S5.4. 2. Tilt-Lock Requirements The August 2005 final rule also set angle tolerances related to the tilt-lock requirements for ELRs, and of these, the petitions for reconsideration requested amendments to the following angle tolerance provisions. The following provisions apply to seat belt assemblies manufactured before February 22, 2007. Under S4.3(j)(1)(iii), the final rule provided that an ELR “[s]hall not lock, if the retractor is sensitive to vehicle acceleration, when the retractor is rotated in any direction to any angle of 15° or less from its orientation in the vehicle.” Under S5.2(j)(1)(ii), the final rule stated that an ELR sensitive to vehicle acceleration is “[a]ccelerated in three directions normal to each other while the retractor drum's central axis is oriented at angles of 45°, 90°, 135°, and 180° from the angle at which it is installed in the vehicle, unless the retractor locks by gravitational force when tilted in any direction to any angle greater than 45° from the angle at which it is installed in the vehicle.” The following provisions apply to seat belt assemblies manufactured on or after February 22, 2007. Under S4.3(j)(2)(i)(D), the final rule provided, “For a retractor sensitive to vehicle acceleration, [the ELR must] lock when tilted at any angle greater than 45 degrees from the angle at which it is installed in the vehicle or meet the requirements of S4.3(j)(2)(ii).” Furthermore, under S4.3(j)(2)(i)(E), the final rule provided, “For a retractor sensitive to vehicle acceleration, [the ELR must] not lock when the retractor is rotated in any direction to any angle of 15 degrees or less from its orientation in the vehicle.” Under S5.2(j)(2)(ii), the final rule stated: “Gravitational locking: For a retractor sensitive to vehicle acceleration, rotate the retractor in any direction to an angle greater than 45 degrees from the angle at which it is installed in the vehicle. Apply a force to the webbing greater than the minimum force measured in S5.2(j)(2)(i) to determine compliance with S4.3(j)(2)(i)(D).” As noted previously, the petitions for reconsideration submitted by the AORC, BMW, and TAKATA-PETRI requested that the standard be amended with regard to the provisions discussed immediately above. The AORC requested that the agency clarify that the default tolerance provision in S5.4 ( *i.e.* , ± 3 degrees) does not apply to these provisions, because the AORC interprets those provisions as explicitly stating the permissible angle measurement ( *e.g.,* “angle of 15 degrees or less,” “angle greater than 45 degrees”). In their petitions, BMW and TAKATA-PETRI argued that a 3-degree tolerance for the 15-degree no-lock requirement would result in “nuisance locking.” Furthermore, BMW stated that such a large tolerance would also result in unnecessary financial costs for manufacturers whose ELRs must comply with both U.S. and European regulations. According to BMW, there is currently no ELR available that could comply with the requirements of both jurisdictions and the ± 3 degree tolerance, so manufacturers would be forced to design different retractors for the U.S. and European markets without a demonstrated safety need. Accordingly, BMW and TAKATA-PETRI requested that the standard be amended to specify a tighter tolerance of ± 0.5 degrees for the standard's 15-degree no-lock requirement, rather than the tolerance of ± 3 degrees currently specified. In response to the petitioners, we clarify that there are no tolerances associated with the tilt-lock requirements specified in S4.3(j)(1)(iii), S4.3(j)(2)(i)(D), S4.3(j)(2)(i)(E), S5.2(j)(1)(ii), and S5.2(j)(2)(ii). Consistent with paragraph S5.4, *Tolerances on angles* , the standard provides for a tolerance of ± 3 degrees, *unless a range of angles is specified* or a tolerance is otherwise specifically provided. The tilt-lock requirements discussed above set ranges of angles, including everything above or below a specified value ( *e.g.* , “angle of 15 degrees or less,” “angle greater than 45 degrees”). Because a range of angles is specified, the ± 3 degree tolerance is not applicable, and therefore, the petitioners' concerns regarding “nuisance locking” and differences in products destined for the U.S. and European markets are not pertinent. Accordingly, we find it unnecessary to amend the standard regarding this issue. B. Determination of Lock-Up In the August 2005 final rule, the agency stated that we understand that there is currently more than one methodology used for determining the point of ELR lock-up. Specifically, some laboratories determine lock-up through observation of a sudden change in the A-T curve, whereas others utilize a 35 N threshold, consistent with industry practice. In the final rule, we declined to adopt a specific requirement for determination of ELR lock-up. We stated that, like the observation of change in the A-T curve, the industry load threshold approach is also an indirect measurement of lock-up, and we noted that we were not aware of any problems associated with either of the existing methods for determining ELR lock-up. BMW and TAKATA-PETRI petitioned the agency to amend the standard to set a specification for determination of ELR lock-up, based upon potential problems in determining lock-up when the CFC 60 Filter is utilized. As an example, the petitioners provided a graph comparing filtered and unfiltered data by plotting the acceleration vs. time curve for each. The data provided by the petitioners demonstrated a time shift in the accelerometer data, which the petitioners argued presents a problem in terms of determining the point of ELR lock-up in the absence of specification in the regulation as to how to interpret these data when determining lock-up ( *i.e.* , defining “lock-up”). Although the petitioners support use of the CFC 60 Filter (which helps conform the instrumentation requirements of FMVSS No. 209 to those of other FMVSSs with a dynamic performance component), they stated that if the testing laboratory uses the filtered peak as the time of ELR lock-up, the belt webbing payout measured could be erroneous; furthermore, the petitioners asserted that it is not clear at what point in the peak the laboratory would determine lock-up (onset, absolute peak, or descent) and start measuring belt webbing payout. BMW and TAKATA-PETRI stated in their petitions for reconsideration that, in light of the information presented, this determination of lock-up is subjective, and, therefore, not acceptable, and does not support the agency's goal of clarifying the current ELR test procedures. Therefore, they recommended that the agency amend the standard to specify a belt load sensor to be used in the webbing path to indicate ELR lock-up. The petitioners recommended that ELR lock-up be the point at which the load sensor measures a 35 N ± 5 N belt load. According to the petitioners, this is the best method for evaluating ELR locking behavior, because it has a direct correlation to real world occupant loading and is consistent with standard industry practice. After careful consideration, the agency agrees that, based upon the supporting data provided by BMW and TAKATA-PETRI, potential interpretation problems could arise regarding the determination of ELR lock-up, unless additional clarification is provided. In order to maintain an objective and repeatable test methodology, we have decided to amend the current ELR test procedures in response to the petitioners' request. We note that BMW stated that the standard industry practice is to use a 35 Newton

(N)load as indication that ELR lock-up has occurred, and the testing laboratories with which the agency contracts to conduct compliance testing have utilized this same methodology since 2003. Although the petitioners did not provide any data to support their view that their recommended test directly correlates to actual occupant loading, and even though we continue to believe that this methodology is an indirect means of determining ELR lock-up, we nonetheless believe that it provides an acceptable means of clarifying the ELR test procedures to ensure an objective and consistent determination of lock-up. Accordingly, we have decided to adopt the petitioners' recommendation and amend the standard's test procedures to provide that a belt load measurement of 35 N or more will indicate ELR lock-up. Although the agency considered various options, such as adopting a bilateral tolerance (i.e., ± x N) on the belt load, the agency feels that it is more appropriate to establish a minimum belt load for determining lock-up, because a minimum belt load provides an objective threshold when the ELR transitions from an unlocked state to a locked state. As the belt load continues to increase above the threshold, the ELR remains locked until the test is completed, so therefore, an upper belt load limit is not necessary. We have selected 35 N as the threshold for determining lock-up because it provides a consistent point of demarcation for lock-up and is also the nominal value recommended by the petitioners consistent with industry practice. C. Requirements for Dual-Sensing ELRs In addition to the substantive changes to the standard discussed above, the amendments adopted by the August 2005 final rule also resulted in a renumbering of certain ELR-related provisions in FMVSS No. 209, some of which did not change in substance. The petitions of the AORC, BMW, and TAKATA-PETRI all requested that the agency clarify the responsibilities for manufacturers in terms of the standard's requirements for dual-sensing ELRs (i.e., retractors that are sensitive to both vehicle acceleration and webbing withdrawal). According to the petitioners, the agency issued a letter of interpretation dated February 19, 1981 to Mr. Frank Pepe 7 which effectively resolved the issue of what requirements would apply to dual-sensing ELRs (stating that manufacturers must meet the requirements for either vehicle-sensitive ELRs or webbing-sensitive ELRs, not both). 7 *See http://isearch.nhtsa.gov/gm/81/nht81-1.14.html.* However, in its petition, the AORC suggested that the agency's August 2005 final rule may have added confusion in this area by renumbering the relevant provisions of the standard. The AORC argued that direct traceability between the 1981 letter of interpretation and the relevant provisions of the standard will be lost under the amended standard. In order to clarify the requirements for dual-sensing ELRs after the final rule's amendments to the standard, the AORC asked the agency to provide an explicit statement that manufacturers of dual-sensing ELRs continue to be required to comply with only one of the permitted options ( *i.e.* , either vehicle-acceleration-sensitive or webbing-withdrawal-sensitive ELRs), but not both. BMW and TAKATA-PETRI also addressed this point, although their petitions went a step further, asking the agency to clarify this matter by amending the standard's regulatory text to incorporate a manufacturer's compliance option in the case of dual-sensing ELRs. In light of the petitioners' requests, we clarify that our renumbering of certain provisions in Standard No. 209 does not impact the validity or ongoing effect of our 1981 letter of interpretation. Our August 2005 final rule renumbered but did not make any substantive modifications to the applicable requirements for dual-sensing ELRs, so the interpretation letter to Mr. Pepe remains valid, despite such numbering changes. The agency will continue to treat dual-sensing ELRs as either vehicle-sensitive or webbing-sensitive retractors. We believe that such numbering changes are unlikely to result in any significant confusion. Therefore, we do not find it necessary to incorporate additional language in the standard, as recommended by BMW and TAKATA-PETRI. D. Other Issues In its petition for reconsideration, the AORC stated that it identified two typographical errors in the laboratory test procedure that the agency released concurrently with the final rule on August 22, 2005 (TP-209-06). Specifically, the AORC argued that a decimal point had inadvertently been omitted. The agency has already revised TP-209-06 to remedy these errors. While we will also make additional modifications to the test procedure to reflect the amendments arising from today's final rule responding to petitions for reconsideration, we note that issues related to the agency's test procedures are not resolved through the rulemaking process. Those procedures do not vary from or add to the requirements of the FMVSS, but instead provide directions to be followed by the laboratories doing compliance testing for the agency. Any concerns related to a test procedure should be directed to NHTSA's Office of Vehicle Safety Compliance. V. Benefits and Costs Section V of the August 22, 2005 final rule stated that NHTSA did not estimate benefits for the rulemaking because we anticipated that it would not result in substantial changes to the performance of emergency-locking retractors. The final rule stated that it is expected that all current ELRs will continue to comply with FMVSS No. 209 without change under the final rule's amendments. The reason for this determination was that the amendments to FMVSS No. 209 in the final rule more directly affect test procedure specifications and are intended only to clarify the test specifications. NHTSA anticipated only minimal cost burden to vehicle manufacturers from the final rule. Testing laboratories might have to develop new specifications for the instrumentation used to generate the acceleration pulses and may be required to obtain the specified accelerometer. However, the agency stated that we anticipate that only a small number of businesses will need to purchase new equipment as a result of the final rule, and for those that do, this would result in a one-time, minimal cost to the test laboratory. The agency has determined that the technical amendments resulting from this final rule responding to petitions for reconsideration will not appreciably change the analysis of costs and benefits reported in the final rule. Accordingly, the agency has determined that that analysis remains valid and that additional analysis is not required. VI. Rulemaking Analyses and Notices A. Vehicle Safety Act 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. 8 These motor vehicle safety standards set the minimum level of performance for a motor vehicle or motor vehicle equipment to be considered safe. 9 When prescribing such standards, the Secretary must consider all relevant, available motor vehicle safety information. 10 The Secretary also must consider whether a proposed standard is reasonable, practicable, and appropriate for the type of motor vehicle or motor vehicle equipment for which it is prescribed and the extent to which the standard will further the statutory purpose of reducing traffic accidents and associated deaths. 11 The responsibility for promulgation of Federal motor vehicle safety standards has been delegated to NHTSA. 12 8 49 U.S.C. 30111(a). 9 49 U.S.C. 30102(a)(9). 10 49 U.S.C. 30111(b). 11 *Id.* 12 49 U.S.C. 105 and 322; delegation of authority at 49 CFR 1.50. In developing the August 22, 2005 final rule to further clarify the test procedures of FMVSS No. 209, *Seat Belt Assemblies* , the agency carefully considered the statutory requirements of 49 U.S.C. Chapter 301. Since that time, the agency received three petitions for reconsideration of the final rule, which requested technical modifications and corrections to the standard. In this final rule responding to petitions for reconsideration, the agency has once again carefully considered the statutory requirements of 49 U.S.C. Chapter 301. First, this final rule reflects the agency's careful consideration and analysis of all issues raised in the petitions for reconsideration. In responding to the issues raised in these petitions, the agency considered all relevant motor vehicle safety information. In preparing this document, the agency carefully evaluated relevant, available research, testing results, and other information related to various ELR technologies. In sum, this document reflects our consideration of all relevant, available motor vehicle safety information. Second, to ensure that the ELR requirements remain practicable, the agency evaluated the potential impacts of the petitions' requested actions on the form and functionality of currently compliant ELRs, consistent with our safety objectives and the statutory requirements. We note that ELRs are already required on light vehicles, and we believe that it will be practicable to adopt the technical modifications to the standard's requirements and test methodology in response to the petitions for reconsideration without necessitating redesigns on the part of ELR manufacturers. We expect that vehicle manufacturers will continue to have a number of technological choices available for meeting the requirements of FMVSS No. 209 for ELRs. As noted above, most of the changes resulting from this final rule involve relatively minor modifications. In sum, we believe that this final rule responding to petitions for reconsideration is practicable and will maintain the benefits of Standard No. 209. Third, the regulatory text following this preamble is stated in objective terms in order to specify precisely what performance is required and how performance will be tested to ensure compliance with the standard. Specifically, this final rule makes minor modifications to the performance requirements and test procedures for operation of the ELRs, in terms of determining when ELR lock-up occurs and by modifying certain angle tolerances. The standard's test procedures continue to carefully delineate how testing will be conducted. Thus, the agency continues to believe that this test procedure is sufficiently objective and would not result in uncertainty as to whether a given seat belt assembly satisfies the requirements of FMVSS No. 209. Fourth, we believe that this final rule responding to petitions for reconsideration will meet the need for motor vehicle safety by making certain modifications that will better define the acceleration pulse that will be utilized in testing ELRs, mechanisms which serve the critical function of ensuring that seat belts are properly locked up in the event of sudden deceleration or a crash. Finally, we believe that this final rule responding to petitions for reconsideration is reasonable and appropriate for seat belt assemblies subject to the applicable requirements. As discussed elsewhere in this notice, the agency is addressing the petitioners' requests for additional amendments to the standard to better define the ELR requirements and test procedures, actions which we do not expect will increase the present stringency of the standard or cause compliance problems for existing ELRs. Accordingly, we believe that this final rule responding to petitions for reconsideration is appropriate for the seat belt assemblies in covered vehicles that are subject to these provisions of FMVSS No. 209 because it furthers the agency's objective of preventing deaths and serious injuries by ensuring that ELRs in seat belt assemblies function properly. B. Executive Order 12866 and DOT Regulatory Policies and Procedures Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to OMB review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The August 22, 2005 final rule was not reviewed by the Office of Management and Budget under Executive Order 12866. Furthermore, that rule was not considered to be significant within the meaning of the Department of Transportation's Regulatory Policies and Procedures (44 FR 11034 (February 26, 1979)). In that final rule, we stated that we do not expect the amendments to the standard to require substantial changes in the performance of ELRs. Testing laboratories might need to develop new specifications for the instrumentation used to generate the acceleration pulses, but it is not expected to result in more than a minimal cost burden for manufacturers. We have likewise considered the impact of this final rule responding to petitions for reconsideration under Executive Order 12866 and the Department of Transportation's Regulatory Policies and Procedures. This rulemaking document was not reviewed by the Office of Management and Budget under Executive Order 12866. This rulemaking document is also not considered to be significant under the Department of Transportation's Regulatory Policies and Procedures. The agency has estimated that the incremental costs associated with the minor technical modifications to the standard resulting from this final rule will not appreciably change the costs of compliance with FMVSS No. 209. C. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. NHTSA has considered the effects of this final rule under the Regulatory Flexibility Act. I certify that this final rule would not have a significant economic impact on a substantial number of small entities. The rationale for this certification is that the present final rule responding to petitions for reconsideration only makes technical modifications and corrections to the safety standard for seat belt assemblies. As discussed in detail in the August 22, 2005 final rule's Regulatory Flexibility Act analysis ( *see* section VI.C), we do not anticipate that the amendments to FMVSS No. 209 will have a significant economic impact on a substantial number of small entities, and nothing in this final rule would change either that assessment or its underlying reasoning. D. Executive Order 13132 (Federalism) NHTSA has analyzed this rule in accordance with the principles and criteria set forth in Executive Order 13132, Federalism, and has determined that it does not have sufficient Federal implications to warrant consultation with State and local officials or the preparation of a Federalism summary impact statement. The rule will 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. However, 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. E. Executive Order 12988 (Civil Justice Reform) This rule will not have any retroactive effect. As noted above in the discussion of Executive Order No. 13132, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the State requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending, or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file a suit in court. F. Executive Order 13045 (Protection of Children from Environmental Health and Safety Risks) Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, April 23, 1997), applies to any rule that:

(1)Is determined to be “economically significant” as defined under Executive Order 12866, and

(2)concerns an environmental, health, or safety risk that the agency has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency. This final rule responding to petitions for reconsideration is not subject to E.O. 13045 because it is not an economically significant regulatory action under Executive Order 12866 and because it does not involve decisions based on environmental, health, or safety risks that disproportionately affect children. G. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995

(PRA)(Pub. L. 104-13), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This final rule responding to petitions for reconsideration does not contain any collection of information requirements requiring review under the PRA. H. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272) directs the agency to evaluate and use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or is otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers. The NTTAA directs us to provide Congress (through OMB) with explanations when we decide not to use available and applicable voluntary consensus standards. The NTTAA does not apply to symbols. The amendments to Standard No. 209 adopted in the August 2005 final rule incorporated voluntary consensus standards promulgated by the Society of Automotive Engineers. This final rule responding to petitions for reconsideration makes additional, minor technical amendments to FMVSS No. 209. Accordingly, this final rule is in compliance with Section 12(d) of the NTTAA. I. Unfunded Mandates Reform Act Section 202 of the Unfunded Mandates Reform Act of 1995

(UMRA)requires federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995 (so currently about $112 million in 2001 dollars)). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation of why that alternative was not adopted. As was the case with the August 2005 final rule, this final rule responding to petitions for reconsideration is not expected to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector in excess of $112 million annually. Because the present final rule responding to petitions for reconsideration only makes technical modifications to the standard, we do not believe that this final rule will appreciably change the costs of compliance with FMVSS No. 209. Therefore, the agency has not prepared an economic assessment pursuant to the Unfunded Mandates Reform Act. J. National Environmental Policy Act NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment. K. Regulatory Identifier Number

(RIN)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. L. Privacy Act Please note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit *http://dms.dot.gov* . List of Subjects in 49 CFR Part 571 Motor vehicle safety, Reporting and recordkeeping requirements, Tires. In consideration of the foregoing, NHTSA is amending 49 CFR Part 571 as follows: PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS 1. The authority citation for part 571 continues to read as follows: Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50. 2. Section 571.209 is amended by revising S4.3(j)(2)(ii), S5.2(j)(2)(iii)(A)(2), and S5.2(j)(2)(iii)(B)(2) to read as follows: § 571.209 Standard No. 209; Seat belt assemblies. S4.3 *Requirements for hardware.*

(j)* * *

(2)* * *

(ii)Shall lock before the webbing payout exceeds the maximum limit of 25 mm when the retractor is subjected to an acceleration of 0.7 g under the applicable test conditions of S5.2(j)(2)(iii)(A) or (B). The retractor is determined to be locked when the webbing belt load tension is at least 35 N. S5.2 *Hardware.*

(j)* * *

(2)* * *

(iii)* * *

(A)* * *

(2)If the retractor does not meet the 45-degree tilt-lock requirement of S4.3(j)(2)(i)(D), accelerate the retractor in three directions normal to each other while the retractor drum's central axis is oriented at angles of 45, 90, 135, and 180 degrees from the angle at which it is installed in the vehicle and measure webbing payout.

(B)* * *

(2)The retractor drum's central axis is oriented at angles of 45, 90, 135, and 180 degrees to the horizontal plane. Accelerate the retractor in the direction of the webbing retraction and measure the webbing payout. Issued: August 23, 2006. Nicole R. Nason, Administrator. [FR Doc. E6-14479 Filed 8-29-06; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [I.D. 081006A] Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; inseason retention limit adjustment. SUMMARY: NMFS has determined that the daily Atlantic bluefin tuna

(BFT)retention limits for the Atlantic tunas General category should be adjusted to allow for a reasonable opportunity to harvest the General category September time-period subquota. Therefore, NMFS increases the daily BFT retention limits to provide enhanced commercial General category fishing opportunities in all areas while minimizing the risk of an overharvest of the General category BFT quota. DATES: The effective dates for the BFT daily retention limits are provided in Table 1 under SUPPLEMENTARY INFORMATION . FOR FURTHER INFORMATION CONTACT: Mark Murray-Brown, 978-281-9260. SUPPLEMENTARY INFORMATION: Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 *et seq.* ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 *et seq.* ) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. The 2006 BFT fishing year began on June 1, 2006, and ends May 31, 2007. The final initial 2006 BFT specifications and General category effort controls were published on May 30, 2006 (71 FR 30619). These final specifications divided the General category quota among three subperiods (June through August, September, and October through January) in accordance with the Highly Migratory Species Fishery Management Plan (1999 FMP) published in 1999 (May 29,1999; 64 FR 29090), and implementing regulations at § 635.27. A three-fish general category retention limit was set for the first subperiod (June through August) due to the large amount of available quota and the low catch rate at the opening of the season. Daily Retention Limits Pursuant to this action and the final initial 2006 BFT specifications, noted above, the daily BFT retention limits for Atlantic tunas General category are as follows: Table 1. Effective dates for retention limit adjustments Permit Category Effective Dates Areas BFT Size Class Limit General June 1, 2006, through August 31, 2006, inclusive All Three BFT per vessel per day/trip, measuring 73 inches (185 cm) curved fork length

(CFL)or larger September 1, 2006, through September 30, 2006, inclusive All Three BFT per vessel per day/trip, measuring 73 inches (185 cm) curved fork length

(CFL)or larger October 1, 2006, through January 31, 2007, inclusive All One BFT per vessel per day/trip, measuring 73 inches (185 cm) CFL or larger Adjustment of General Category Daily Retention Limits Under 50 CFR 635.23(a)(4), NMFS may increase or decrease the General category daily retention limit of large medium and giant BFT over a range from zero (on Restricted Fishing Days) to a maximum of three per vessel to allow for a reasonable opportunity to harvest the quota for BFT. As part of the final specifications on May 30, 2006 (71 FR 30619), NMFS adjusted the commercial daily BFT retention limit, in all areas, for those vessels fishing under the General category quota, to three large medium or giant BFT, measuring 73 inches (185 cm) or greater curved fork length (CFL), per vessel per day/trip. This retention limit was to remain in effect through August 31, 2006, inclusive. From September 1, 2006, through January 31, 2007, inclusive, the General category daily BFT retention limit was scheduled to revert to one large medium or giant BFT per vessel per day/trip. The June through August time-period subquota allocation for the 2006 fishing year totaled approximately 692 metric tons (mt). As of August 17, 2006, 34.6 mt have been landed in the General category and catch rates are less than 1.0 mt per day. If catch rates remain at current levels, approximately 14 mt would be landed during the remainder of August. This projection would bring the June though August time-period subquota landings to approximately 49 mt, resulting in an underharvest of approximately 643 mt. This carryover combined with the September time-period subquota allocation of 346 mt would allow for 989 mt to be harvested in the month of September. In combination with an expected subquota rollover from the June through August time-period, the September time-period subquota allocation, current catch rates, and the daily retention limit reverting to one large medium or giant BFT per vessel per day on September 1, 2006, NMFS anticipates the full September time-period subquota will not be harvested. This could result in a potential excessive rollover into the October through January time-period. Adding an excessive amount of unused quota from one time-period subquota to the subsequent time period subquota is undesirable because it effectively changes the time-period subquota allocation percentages established in the 1999 FMP. Therefore, based on a review of dealer reports, daily landing trends, available quota, and the availability of BFT on the fishing grounds, NMFS has determined that an increase in the General category daily BFT retention limit effective from September 1, 2006, through September 30, 2006, inclusive, is warranted. Thus, the General category daily retention limit of three large medium or giant BFT per vessel per day/trip (see Table 1) is extended through September 30, 2006. From October 1, 2006, through January 31, 2007, inclusive, the General category default daily BFT retention limit will be one large medium or giant BFT per vessel per day/trip. It is highly likely that with a combination of the default retention limit starting on October 1, 2006, and the large amount of General category quota available, there will be sufficient quota for the coastwide General category season to extend into the winter months and allow for a southern Atlantic fishery to take place on an order of magnitude of prior years with minimal risk of landings exceeding available quota. In addition, one of the preferred alternatives in the proposed Consolidated Highly Migratory Species FMP (August 19, 2005; 70 FR 48804) would formally allocate General category sub-quota to the December and January individual time-frames to provide for a late-season south Atlantic fishery. The intent of this adjustment is to allow for a reasonable opportunity to harvest the U.S. landings quota of BFT while maintaining an equitable distribution of fishing opportunities, to help achieve optimum yield in the General category BFT fishery, to collect a broad range of data for stock monitoring purposes, and to be consistent with the objectives of the 1999 FMP. Monitoring and Reporting NMFS selected the daily retention limits and their duration after examining current and previous fishing year catch and effort rates, taking into consideration public comment on the annual specifications and inseason management measures for the General category received during the 2006 BFT quota specifications rulemaking process, and analyzing the available quota for the 2006 fishing year. NMFS will continue to monitor the BFT fishery closely through dealer landing reports, the Automated Landings Reporting System, state harvest tagging programs in North Carolina and Maryland, and the Large Pelagics Survey. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional retention limit adjustments are necessary to ensure available quota is not exceeded or, to enhance scientific data collection from, and fishing opportunities in, all geographic areas. Closures or subsequent adjustments to the daily retention limits, if any, will be published in the **Federal Register** . In addition, fishermen may call the Atlantic Tunas Information Line at

(888)872-8862 or

(978)281-9260, or access the internet at *www.hmspermits.gov* , for updates on quota monitoring and retention limit adjustments. Classification The Assistant Administrator for NMFS (AA), finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons: NMFS has recently become aware of increased availability of large medium and giant BFT on the New England fishing grounds from fishing reports and conversations with fishermen. This increase in abundance provides the potential to increase General category landings rates for the New England fishery if participants are authorized to harvest three large medium or giant BFT per day. Also, since the end of the 2006 BFT specification comment period, NMFS has continued to receive more information refining its understanding of the commercial and charter/headboat sectors' specific needs regarding BFT retention limits. The regulations implementing the 1999 FMP provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Adjustment of retention limits is also necessary to avoid excessive quota rollovers to subsequent General category time-period subquotas. NMFS needs to act promptly to enhance fishing opportunities for northern area fishermen while the BFT are still available on northern New England fishing grounds. Analysis of available data shows that the General category BFT retention limit may be increased for the Atlantic tuna General and HMS Charter/Headboat permit holders with minimal risks of exceeding the International Commission for the Conservation of Atlantic Tuna allocated quota. Delays in increasing the retention limits would be contrary to the public interest. Such delays would adversely affect those General and HMS Charter/Headboat category vessels that could otherwise harvest more than one BFT per day and would further exacerbate the problem of quota rollovers, and/or lack of booked charters. Limited opportunities to harvest the respective quotas may have negative social and economic impacts to U.S. fishermen that either depend on catching the available quota within the time-periods designated in the 1999 FMP, or depend on multiple BFT retention limits to attract individuals to book charters. For both the General and the HMS Charter/Headboat sectors, the retention limits must be adjusted as expeditiously as possible so the impacted sectors can benefit from the adjustment. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, and because this action relieves a restriction (i.e., current default retention limit is one fish per vessel/trip but this action increases that limit and allows retention of more fish), there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness. This action is being taken under 50 CFR 635.23(a)(4) and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 971 *et seq.* and 1801 *et seq.* Dated: August 24, 2006. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E6-14486 Filed 8-29-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 051128313-6029-02; I.D. 081506B] Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota Transfer AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; inseason quota transfer. SUMMARY: NMFS announces that the State of Florida is transferring commercial bluefish quota to the State of New York from its 2006 quota. By this action, NMFS adjusts the quotas and announces the revised commercial quota for New York and Florida. DATES: Effective August 29, 2006 through December 31, 2006, unless NMFS publishes a superseding document in the **Federal Register** . FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Management Specialist,

(978)281-9341, fax

(978)281-9135. SUPPLEMENTARY INFORMATION: Regulations governing the Atlantic bluefish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Florida through Maine. The process to set the annual commercial quota and the percent allocated to each state as described in § 648.160. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine bluefish commercial quota under § 648.160(f). The Regional Administrator is required to consider the criteria set forth in § 648.160(f)(1) in the evaluation of requests for quota transfers or combinations. Florida has agreed to transfer 125,000 lb (56,699 kg) of its 2006 commercial quota to New York. The Regional Administrator has determined that the criteria set forth in § 648.160(f)(1) have been met. The revised bluefish quotas for calendar year 2006 are: New York, 1,025,526 lb (465,171 kg); and Florida, 476,012 lb (215,915 kg). Classification This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: August 24, 2006. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E6-14482 Filed 8-29-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 051104293-5344-02; I.D. 082406A] Fisheries of the Northeastern United States; Summer Flounder Fishery; Commercial Quota Harvested for Maine AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Closure of commercial fishery. SUMMARY: NMFS announces that the summer flounder commercial quota available to Maine has been harvested. Vessels issued a commercial Federal fisheries permit for the summer flounder fishery may not land summer flounder in Maine for the remainder of calendar year 2006, unless additional quota becomes available through a transfer. Regulations governing the summer flounder fishery require publication of this notification to advise Maine that the quota has been harvested and to advise vessel permit holders and dealer permit holders that no commercial quota is available for landing summer flounder in Maine. DATES: Effective 0001 hours, August 31, 2006, through 2400 hours, December 31, 2006. FOR FURTHER INFORMATION CONTACT: Douglas Potts, Fishery Management Specialist,

(978)281-9341 SUPPLEMENTARY INFORMATION: Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.100. The initial total commercial quota for summer flounder for the 2006 calendar year was set equal to 14,154,000 lb (6,420 mt) (70 FR 77061, December 29, 2005). The percent allocated to vessels landing summer flounder in Maine is 0.04756 percent, resulting in a commercial quota of 6,732 lb (3,054 kg). The 2006 allocation was reduced to 6,630 lb (3,007 kg) due to research set-aside. Section 648.101(b) requires the Administrator, Northeast Region, NMFS (Regional Administrator) to monitor state commercial quotas and to determine when a state's commercial quota has been harvested. NMFS then publishes a notification in the **Federal Register** to advise the state and to notify Federal vessel and dealer permit holders that, effective upon a specific date, the state's commercial quota has been harvested and no commercial quota is available for landing summer flounder in that state. The Regional Administrator has determined, based upon dealer reports and other available information, that Maine has harvested its quota for 2006. The regulations at § 648.4(b) provide that Federal permit holders agree, as a condition of the permit, not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 0001 hours, August 31, 2006, further landings of summer flounder in Maine by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2006 calendar year, unless additional quota becomes available through a transfer and is announced in the **Federal Register** . Effective 0001 hours, August 31, 2006, federally permitted dealers are also notified that they may not purchase summer flounder from federally permitted vessels that land in Maine for the remainder of the calendar year, or until additional quota becomes available through a transfer. Classification This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: August 24, 2006. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E6-14474 Filed 8-29-06; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 060216044-6044-01; I.D. 082506A] Fisheries of the Exclusive Economic Zone Off Alaska; Pollock in Statistical Area 610 of the Gulf of Alaska AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY: NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the C season allowances of the 2006 total allowable catch

(TAC)of pollock for Statistical Area 610 of the GOA. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), August 28, 2006, through 1200 hrs, A.l.t., October 1, 2006. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: 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 C season allowance of the 2006 TAC of pollock in Statistical Area 610 of the GOA is 10,249 metric tons

(mt)as established by the 2006 and 2007 harvest specifications for groundfish of the GOA (71 FR 10870, March 3, 2006). In accordance with § 679.20(a)(5)(iv)(B) the Administrator, Alaska Region, NMFS (Regional Administrator), hereby decreases the C season pollock allowance by 3,850 mt, the amount by which the A and B season allowance of the pollock TAC in Statistical Area 610 was exceeded. The revised C season allowance of the pollock TAC in Statistical Area 610 is therefore 6,399 mt (10,249 mt minus 3,850 mt). In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the C season allowance of the 2006 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 6,385 mt, and is setting aside the remaining 14 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA. After the effective date of this closure the maximum retainable amounts at § 679.20(e) and

(f)apply at any time during a trip. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 24, 2006. The AA also finds good cause to waive the 30 day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.20 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: August 25, 2006. James P. Burgess, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 06-7261 Filed 8-25-06; 2:36 pm]

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